Calcutta High Court (Appellete Side)

Md. Habil Ansari & Anr vs Bibi Fatema & Ors on 31 July, 2023

                                        1


                      IN THE HIGH COURT AT CALCUTTA

                        (Civil Appellate Jurisdiction)

                                APPELLATE SIDE

Present:

The Hon'ble Justice Rajasekhar Mantha

And

The Hon'ble Justice Supratim Bhattacharya



                                 FA 128 of 2012

                             Md. Habil Ansari & Anr.

                                       Vs.

                               Bibi Fatema & Ors.



For the appellants       :     Mr. Sujay Bandyopadhyay
                               Mr. Jagajyoti Das

For the respondents      :     Mr. Partha Pratim Roy

Mr. Sarbananda Sanyal Heard On : 12.07.2023

Judgement Delivered On : 31.07.2023

Supratim Bhattacharya, J.:-

1. The instant appeal has been preferred by the appellants being aggrieved

by and dissatisfied with the Judgment and decree dated 27.11.2009

being passed by the Ld. Civil Judge Sr. Divn. Malda in Partition Suit No.

95 of 2003.

2. The appellants were the defendants in the said partition suit while the

respondents herein were the plaintiffs.

3. Through the judgment the Ld. Trial Judge has decreed the said suit for

partition on contest in preliminary form. The Ld. Trial Court has come to

the finding that the respondents/plaintiffs have 1/14th share each in

respect of the suit property while each of the appellants/defendants have

2/14th share in respect of the suit property.

4. The moot point for consideration before this Court is as to whether the

impugned judgment passed by the Ld. Trial Court is in accordance with

law or not.

5. The Ld. Counsel appearing on behalf of the appellants during his

argument has submitted that the Ld. Trial Judge erred in law in

decreeing the suit in preliminary form holding the registered hiba-bil-

iwaz executed on 08.09.1993 as void. He has further submitted that no

such prayer was made on behalf of the respondents/plaintiffs seeking

declaration of the said hiba-bil-iwaz as void. The Ld. Counsel has further

submitted that the Ld. Trial Judge without going into the evidence of the

parties has come to such conclusion and has further submitted that the

Ld. Trial Judge has erred in law in holding the registered document as

void after 10 years of its execution. He has further submitted that the Ld.

Trial Judge has erred in law as no prayer had been made for cancellation

of the registered deed under the Specific Relief Act on behalf of the

respondents/plaintiffs. He has further submitted that the date of death

of Riasutulla Mandal was 28.10.2000 but in the plaint it has been

wrongly mentioned as 28.10.2002 and the said partition suit has been

filed long after the demise of the said Riasutulla Mandal who had

executed the said hiba-bil-iwaz on 23.09.1993. The Ld. Counsel has

further submitted that the Ld. Trial Judge has erred in law in holding

that the execution of the hiba-bil-iwaz is doubtful. Banking upon the

aforesaid facts and circumstances the Ld. Counsel has prayed for

allowing the instant appeal.

6. The Ld. Counsel appearing on behalf of the respondents has submitted

that the Ld. Trial Judge has not erred in law by coming to the conclusion

that the said hiba-bil-iwaz is void. He has further submitted that there

being suspicious circumstance which has cropped up in evidence, the

Ld. Trial Judge has come to the finding that the said hiba-bil-iwaz is a

void one. He has further submitted that the finding of the Ld. Trial Judge

that each of the respondents/plaintiffs have share in the suit property to

the extent of 1/14th share while each of the appellants/defendants have

share of 2/14th in respect of the suit property is absolutely correct. He

has further submitted that the finding of the Ld. Trial Judge that the

schedule mentioned as the suit property be partitioned amicably on the

basis of the preliminary decree which has been finally reached is in

accordance with law. Banking upon the aforesaid facts and

circumstances the Ld. Counsel has prayed for disallowing the instant

appeal.

7. The fact of the instant appeal is that the suit properties originally

belonged to Riasatulla and the name of the said Riasatulla is mentioned

in the Revisional Settlement (R S) Record of Rights. The said Riasatulla

expired on 28.10.2002 at the age of 90 years. At the time of his expiry he

left behind ten daughters and two sons.

The aforementioned ten daughters prayed before the two sons of

the said Riasatulla, since deceased, for amicable settlement of the suit

properties amongst themselves. The brothers did not accept the said

proposal of their sisters as such the sisters have been compelled to file

the suit for partition being Partition Suit No. 95 of 2003 filed on

25.03.2003.

The sons denied that the daughters of Riasatulla had any share in

respect of the suit properties as because Riasatulla Mandal their father

through registered hiba-bil-iwaz has transferred the suit properties in

their favour in equal share.

The respondents/plaintiffs/daughters obtained certified copies of

the hiba-bil-iwaz from the registry office on 19.02.2003 and thereafter

the partition suit was instituted.

Through the said partition suit the respondents /plaintiffs prayed

for declaration of their shares in respect of the suit properties.

The Ld. Trial Court decreed the partition suit on contest in

preliminary form declaring that the respondents/ plaintiffs are entitled to

1/14th share each while the appellants/defendants are entitled to 2/14th

share each in respect of the suit properties.

Being aggrieved by and dissatisfied with the order passed by the

Ld. Trial Court the appellants preferred the instant appeal. The instant

appeal has been preferred before the Hon'ble Court as because the

valuation of the suit property being Rs. 2,21,000/- which is beyond the

pecuniary jurisdiction of the Ld. District Judge.

8. The crux of the instant lis is as to whether hiba-bil-iwaz said to have

been executed by Riasatulla Mandal in favour of his two sons namely

Habil Ansari and Kabil Ansari being the appellants in the instant appeal

are valid or not.

9. This Court takes into consideration the evidence of Md. Habil Ansari,

DW1, who during his cross-examination has deposed as follows:

"...All the signatures of my father were taken before drafting of the instant deed. I reached Malda at 10.45 A.M. On 08.09.93, my father did not come to Malda or anywhere from the house. (Then says) on 23.9.1993 I came to Malda. The instant deed was drafted and written at the sub Registrar office Ratua on 8.9.93. The deed was drafted and written on and from 8 A.M. to 9 A.M. on 8.9.93. My father put his signature there at about 9 A.M. at the sub Registrar's office Ratua. I handed over the said Holy Quran to my father there. My father had wish to register the instant deed at Malda Registrar's office. My whole family knew about such wish of my father. My father can write Bengali. The deed was kept in the custody of Kaum Ansari. Due to financial constraint about the fee and other cost of Registrar's office my father did not come to Malda District Registrar's office on 8.9.93. At 9 A.M. on 23.9.93 I started with my father, my brother and the deed writer towards the Malda District Registrar's office.

The deed was presented before the registering authority at about 12 noon. I have not taken the receipt of purchasing the holy Quran sharif. The shop owner of Raja Pustakalaya of Ratua will not depose in this suit. On 8.9.93 my father expressed his willingness to alienate his properties mentioned in the schedule in the said deed. My father expressed his willingness in presence of I myself, brother, sisters, deed writer and witness of the deed. At 8 A.M. my father expressed his willingness to alienate the property to me at his house. My father's house was about 5 minutes by foot away from the Ratua Sub Registrar's office. On 8.9.93 the possession of the properties was delivered to me. The witnesses of the deed, deed writer, the plaintiff and my neighbours knew about the delivery of possession. My father and the deed writer went to the suit property. The witnesses of the deed did not visit the suit property."

10. Md. Kabil Ansari, DW during his cross-examination has deposed

as follows:

"this deed was drafted at Sheresta of Mohorar at Malda Sadar registration office ...

As per the wish of the donor of this hiba-bil-iwaz this deed has been prepared and drafted at Malda Sadar registration office.

My father came only once, the date I cannot remember in registration office for registration of this hiba-bil-iwaz.

I purchased Quran in exchange of this hiba-bil-iwaz has been executed, from the shop named and style Raja Book Depot at Ratua. I cannot say on which date I purchased the Quran. I do not have any receipt showing the date on which I purchased the Quran."

11. Md. Hayum Ansari another witness appearing on behalf of the

defendants during his cross examination has deposed as follows:

"I witnessed two deeds dated 8.9.93 registered on 23.9.93 and 26.10.95 and it was registered on 3.11.95. The deed dated 8.9.93 was drafted at Ratbari sub Registrar's office. At about 11 to 11.30 a.m. the drafting of the deed was complete. The deed dated 26.10.95 was drafted at Ratua sub Registrar's office. Both the deeds were registered at district Registrar's office Malda. The first deed was registered at about 12.30 p.m. and second deed was also registered at about 12.30 p.m. As per wish of the donor those deeds were registered in the office of the district Registrar Malda. On 23.9.93 the deed writer Kayum Ansari, Raisutullah, Habil Ansari, Kabil Ansari and Kayum Ansari went to the Registrar's office Malda. On 3.11.95 the same persons attended the District Registrar's office Malda... I witnessed other four deeds. I cannot say the name of the deed writer and witnesses of those deeds. I cannot say also the name of the parties of those deeds. I cannot say also the date of execution as well as registration of those deeds ... The two Quran Sharif were purchased on 8.9.93 and 26.10.95. Both the Qurans were purchased from 'Ratua Pustakalaya' by Habil Ansari and Kabil Ansari at a cost of Rs. 60/- by Kabil and Rs. 57/- by Habil... Habil and Kabil Ansari obtained receipt in respect of purchase of the holy Quran sharif.

12. Thus from the evidence on record it reveals that there is no

similarity in the evidence of the witnesses. The appellant/defendant

himself namely Habil Ansari has deposed that his father had signed

before the drafting of the deed. He has also deposed that his father on

08.09.1993 had not gone anywhere from the house.

13. As regard to drafting of the deed, Md. Habil Ansari has deposed

that the said deed was drafted and written at the sub-Registrar office

Ratua on 08.09.1993. Md. Kabil Ansari has stated that as per the wish

of the donor of the hiba-bil-iwaz the deed has been prepared and drafted

at Malda Sadar Registration office while Md. Hayum Ansari has deposed

that the deed dated 08.09.1993 was drafted at Ratbari Sub-Registrar's

office. Thus there are mention of several places by different persons.

14. As regards to the name of the book-stall wherefrom the said two

Qurans were said to have been purchased have been stated differently by

the witnesses, while Habil Ansari has stated as Raja Pustakalaya of

Ratua, Kabil Ansari has stated the name of the book store as Raja Book

depot at Ratua and Hayum Ansari has deposed that the name of the

book stall was Ratua Pustakalaya.

15. Thus there are ample dissimilarities in the depositions of the

witnesses and there being no corroboration, this Court holds that hiba-

bil-iwaz which are said to have been executed by the said Riasatulla are

not at all valid.

16. From the hiba-bil-iwaz dated 23.09.93 it reveals that the said deed

being No. 9398 of the year 1993 has been registered in the office of the

District Registrar Malda to this effect also there is discrepancy as regards

to the deposition of the witnesses. Habil Ansari has deposed that the

deed was drafted and written on and from 8 A.M. to 9 A.M. on 08.09.93

and his father had signed at the Sub-Registrar's office Ratua. He has

further deposed that due to financial constraint his father did not go to

Malda District Registrar's office on 08.09.1993. The moot point for

consideration is the submission of Md. Habil Ansari that the signatures

of his father were taken before drafting of the instant deed. These words

create immense doubt in the mind of the Court and as such this Court

finds the invalidity of the deed. This being the fact the instant deed being

hiba-bil-iwaz which has been alleged to have been executed by Riasatulla

in favour of Md. Habil Ansari and Md. Kabil Ansari that is the appellants

does not have any leg to stand upon.

17. As regards to Exhibit-G that is a hiba-bil-iwaz being gifted by Md.

Riasatulla in favour of Md. Kabil Ansari being deed No. 1822 for the year

1996 registered in the office of the District Sub-Registrar Malda which

has been exhibited on behalf of the appellants/defendants, there is no

whisper at all as regards to the said deed in the written statement filed

on 25.9.2004 by the appellants/defendants. After a gap of two years

during the year 2006 through an additional written statement the story

of the Exhibit-G has been placed before the Court which raises immense

doubt in the mind of the Court in addition Md. Habil Ansari has deposed

that his father through a registered deed of hiba-bil-iwaz on 26.10.1995

had transferred the said land to his brother Gobil Ansari. There is no

brother named Gobil Ansari this also raises doubt in the mind of the

Court and the appellants/defendants have not been able to prove the

said Exhibit-G beyond doubt. As such the said Exhibit-G is not found to

be valid and is not taken into consideration.

18. Two conditions must concur to make the transaction of hiba-bil-

iwaz valid. Those are 1) Actual payment of consideration (iwaz) on the

part of the donee and 2) a bona fide intention on the part of the donor to

divest himself in praesenti of the property and to confer it upon the

donee.

The High Courts of Calcutta, Madras, Allahabad. Patna and Nagpur

have held that a transaction of this character is nothing but a sale;

therefore where the property is immovable and is of the value of Rs. 100

and upwards, it must be effected by a registered instrument as required

by Section 54 of the Transfer of Property Act, 1882, which relates to

sales.

19. In this instant case Md. Habil Ansari, DW1, during his cross-

examination has deposed that "All the signatures of my father were taken

before drafting of the instant deed" so the hiba-bil-iwaz is not at all a

valid deed. So the contentions of the appellants defendants do not have

the legs to stand upon. As such the hiba-bil-iwaz is not to be taken into

consideration.

20. From the above discussion it is evident that fraud has been

committed as because the signatures of the executant were taken prior to

the preparation of the deed. Where fraud has been committed in respect

of a deed the said deed cannot be taken as a valid one.

21. Thus, from the evidence on record it reveals that fraud has been

committed by his sons upon Riasatulla as regards to the hiba-bil-iwaz.

Considering the fact of fraud the hiba-bil-iwaz cannot be taken into

consideration.

22. As regards to the sale deed in favour of Hajrat Ali being registered

in the office of the Additional District Sub-Registrar Ratua recorded in

Book No.1 Volume No. 108 Pages 183 to 190 being No. 3976 in the year

2005, from the evidence of DW2 that is Hajrat Ali it reveals that the

following has been mentioned in the examination-in-chief :

"... I have land beside the land of Riastullah Momin. I know the daughters of him. I purchased land from Fatema, Anoara, Salema and others. I have taken the original deed. This is the said deed. (the deed is marked as Exhibit 'F' on admission by the Ld. Advocate for the plaintiff. Deed No.I 3976 dated 29.8.2005.)."

23. So from the evidence on record it reveals that the sale deed being

no. 3976 dated 29.8.2005 in favour of Hajrat Ali has been exhibited on

admission by the Ld. Advocate who had appeared on behalf of the

plaintiffs. So the property mentioned in Dag No. 238 and 239 have been

sold in favour of Hajrat Ali. So the property mentioned in the schedule of

the said deed cannot be included as joint properties.

24. So the appellants/defendants and the respondents/plaintiffs are

entitled to the schedule mentioned properties, left by their father, on the

basis of the principles laid down under the Mohammedan succession

law.

Thus this Court finds reasons to interfere with the Judgment

passed by the Ld. Trial Court to the extent that except the properties sold