Tripura High Court

Smt. Achabun Nessa vs Elaich Miah on 5 February, 2021

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                      HIGH COURT OF TRIPURA
                            AGARTALA
                        RSA NO.13 OF 2019


1. Smt. Achabun Nessa
W/o Lt. Mayna Miah.

2. Sri Sattar Miah
S/o Lt.Mayna Miah

3. Sri Attar Miah
S/o Lt. Mayna Miah

-all resident of Village
Nayapatan, P.O & P.S. Kailashahar
District Unakoti, Tripura and are
Represented by the Constituted Attorny
Md. Hasib Ali, S/o Chalimullah, resident
Of Village Yazekhaora, P.O. Babu Bazar,
P.S. Irani, District Unakoti, Tripura.

                                 ------ Plaintiff-Appellants

                             Versus
1. Elaich Miah
S/o Lt. Mayna Miah.

2. Askir Miah
S/o Lt. Mayna Miah.

3. Firoj Miah
S/o Lt. Mayna Miah.

4. Rajen Miah
S/o Lt. Mayna Miah.

- All are residents of Nayapatan,
P.O & P.S. Kailashahar, District
Unokoti, Tripura West.

5. Sri Nani Gopal Deb.
Deed Writer of Kailashahar
Sub-Registry Office.

6. Smt. Soma Paul


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Deed Writer of Kailashahar Sub-Registry Office.

7. Sri Abani Debnath
Deed Writer of Kailashahar Sub-Registry Office,
All are of Kailashahar Sub-Registry Office
P.O. & P.S. Kailashahar, District-Unakoti, Tripura.

                            .... Principal Dfd. Respondant.

8. Anowara Begum
W/o Lt. Mayna Miah

9. Mattar Miah
S/o Lt. Mayna Miah
Of Village Nayapatan, PO & PS
Kailashahar, District Unakoti
Tripura.
                           ....... Pro forma Dfd. Respondents.

For the Appellant(s) : Mr. D.R. Chowdhury, Advocate.

For the Respondent(s) : Mr. D. Bhattacharjee, Advocate.

Date of hearing               : 22.01.2021.

 Date of delivery of
Judgment & Order              : 05.02.2021


Whether fit for reporting     : YES.


            HON'BLE MR. JUSTICE ARINDAM LODH
                JUDGMENT & ORDER

This is a second appeal filed under Section 100 of the

CPC against the judgment dated 16.01.2019 and decree dated

17.01.2019 in case No. T.A. 04 of 2018 passed by the learned

District Judge, Unakoti, Kailashahar, arising out of judgment

dated 28.02.2018 and decree dated 06.03.2018 passed by the

learned Civil Judge, Senior Division, Court No.1, Unakoti,

Kailashahar in Case No. T.S. 10 of 2016 thereby dismissing the

appeal and affirming the judgment and decree of dismissal of the

learned Trial Court.

2. Heard Mr. D.R. Chowdhury, learned counsel appearing

for the appellants as well as Mr. D. Bhattacharjee, learned

counsel appearing for the respondents.

3. The facts relevant to decide the present second appeal

may be set forth in brief. The plaintiff-appellants here-in-after

referred to as plaintiffs had instituted a suit for declaration of the

registered sale deed bearing No.1-77 dated 18.01.2007

specifically described in the second schedule of the plaint

purportedly to be executed by Mayna Miah in favour of the

defendant Nos.1 to 4 as illegal, ineffective and effect of fraud,

collusion, misrepresentation and not binding on the plaintiffs.

The case of the plaintiffs is that the plaintiffs and the defendant

Nos.1 to 4 & 8 & 9 are the joint owners of the suit land i.e., the

first schedule of the plaint. Mayna Miah was the original owner of

the suit land being the predecessor of the plaintiffs and

defendant Nos.1 to 4 and 8 to 9. After the death of Mayna Miah

on 23.03.2012, the plaintiffs and the defendant No.1 to 4 and 8

to 9 became the owner of the suit land being the legal heirs of

the deceased-Mayna Miah. The plaintiffs have been in possession

of the suit land and during the lifetime, Mayna Miah never sold

the suit land to defendant Nos.1 to 4. But the defendant Nos.1 to

4 being the stepsons of the plaintiff No.1 and step brothers of

other plaintiffs have procured forged sale deed as described in

the second schedule of the plaint. The plaintiffs came to learn

recently about the forged sale deed dated 18.01.2007 and

obtained the certified copy of the said forged deed on

12.10.2015 and came to know that the defendant Nos.1 to 4

created the said deed by exercising fraud and misrepresentation,

and by making false persuasion and registered it before the Sub-

Registry office Kailashahar in collusion with attesting witnesses,

scribe and the defendant Nos.5, 6 & 7 with a view to grab the

share of the plaintiffs. According to the plaintiffs, Mayna Miah

used to put his signature but in the alleged forged deed there

was thumb impression alleged to be given by Mayna Miah but no

explanation was given in regard to putting of thumb impression

in lieu of signature. Mayna Miah during his lifetime never

disclosed about the alleged sale deed. It is also pleaded that

defendant Nos.1 to 4 on the basis of alleged deed dated

18.01.2007 mutated their names vide khatian No. MR 41/92,

562/2001 and 578/95, which are before the date of disputed

deed and for which, the plaintiffs filed a petition on 04.11.2015

for cancellation of the said khatian created in favour of the

defendant Nos.1 to 4 before the Revenue Authority. The said

petition is still pending and till date the plaintiffs are in

possession of the suit land by constructing dwelling hut and by

growing crops. The suit was filed by the plaintiffs through their

Attorney Hasib Ali who is fully acquainted with the subject

matter of the present suit.

4. Contesting the suit, the defendant Nos.1 to 3 filed the

written statement, wherein, they stated that the suit was

undervalued for want of payment of proper Court fees and the

suit was barred by the law of limitation as the defendant Nos.1

to 4 have been possessing the suit land since 18.01.2007 by

virtue of registered sale deed number 1-77 dated 18.01.2007. It

was also pleaded by the defendant Nos.1 to 3 that the land

measuring 1.32 acres including part of the 1st schedule land of

the plaint measuring 0.52 acres appertaining to R.S. Plot

No.1418, 2121/2381 was originally belonged to the mother of

the defendants No.1 to 4, namely, Anwara Begam (Proforma

Defendant No.8), who was the first wife of Mayna Miah, and as

she was illiterate her husband, deceased-Mayna Miah managed

to obtain a sale deed bearing No.1-2148 dated 09.08.1989 in his

favour and thereafter, the said Mayna Miah transferred the land

measuring 0.80 acres out of the said land measuring 1.32 acres

in favour of the plaintiff No.1 Achabun Nessa by registered sale

deed bearing No.1-2409 dated 18.10.1989 and married to the

plaintiff No.1 as his fourth wife. The said land was recorded

under the Khatian No.704. Denying the allegation of the plaintiff

that Mayna Mia was able to put his signature, the defendant Nos.

1 to 4 has pleaded that the said Mayna Miah on 08.09.1998

executed an agreement by putting thumb impression and one

illegible signature as well, and mortgaged the land measuring

0.99 acres at a consideration of Rs.25,000/- out of the land

measuring 1.32 acres in favour of one Lila Malakar which

discloses the inability of Mayna Miah to put any legible signature

and as the said Mayna Miah was illiterate and lost his capacity to

put any legible signature he executed the questioned sale deed

on 18.01.2007 by putting his thump impression and delivered

possession of the suit land and building on 18.01.2007 itself.

According to defendant Nos.1 to 4, Mayna Miah himself

presented the said sale deed for registration and, accordingly, it

was registered. Thus, it was the plea of defendant Nos.1 to 3

that defendant Nos.1 to 4 became absolute owner of the suit

land by way of purchase from Mayna Miah for consideration

money of Rs.3,00,000/- and since purchase, the defendant-

respondent Nos.1 to 4 have been possessing the suit land and,

accordingly, the suit land was mutated in their names vide

Khatian No.401 and the plaintiffs have no right, title, interest

and possession over the suit land. Relying on their aforesaid

pleading, the defendant Nos.1, 2 & 3 prayed for dismissal of the

suit instituted by the plaintiffs.

5. The suit of the plaintiffs was also contested by

defendant Nos.5, 6 & 7 by filling separate written statement

denying all the pleas of the plaintiffs and inter alia pleaded that

no fraud, collusion, misrepresentation or false persuasion as

alleged was committed by any of the defendants, and Mayna

Miah himself executed the questioned deed by putting thumb

impression in presence of the attesting witnesses, namely,

defendant Nos.6 & 7 as Mayna Miah was illiterate and unable to

put his signature. The deed in question was scribed by defendant

No.5 as per instruction of Mayna Miah who himself presented the

deed. Thus, defendant Nos.5, 6 & 7 prayed for dismissal of the

suit of the plaintiffs. Defendant Nos.4, 8 & 9 did not contest the

suit despite being summoned and the suit proceeded ex-parte

against them in their absentia.

6. The learned Civil Judge having heard the counsels and

on consideration of pleas had framed the following issues:-

i) Whether the Plaintiffs have cause of action behind this suit?

ii) Whether the suit is properly valued or not?

iii) Whether the suit is barred by limitation?

iv) Whether the registered suit deed (2nd schedule) No.1-77 dated 18-01-2007 of sub-registry office,

Kailashahar is a forged document declared to be null and void and not binding upon the plaintiffs?

v) Whether the plaintiffs are entitled to get the decree of declaration as prayed for?

7. On the above issues, all the contesting parties had

adduced evidence and introduced material documents to

substantiate their pleas. Arguments were heard. Having

considered the case on merit, the learned Civil Judge, Senior

Division had held that the plaintiffs were not entitled to get any

decree as they prayed for and dismissed the suit vide judgment

and decree dated 28.02.2018.

8. Feeling aggrieved and dissatisfied with the judgment

and decree of dismissal of the suit, the plaintiffs had preferred

first appeal before the learned District Judge. The learned District

Judge on hearing the arguments and taking due care of

materials on record had dismissed the appeal, confirming the

judgment and decree of dismissal of the suit passed by the

learned Civil Judge, Senior Division as aforestated.

9. Hence, the present second appeal before this Court.

10. At the time of admission of this appeal, after hearing

the appellants, the Court had formulated the following

substantial question of law:-

"Whether the questioned deed No.1-77 dated 18.01.2007 (Ext.C) can be held to be legally executed in

compliance to the rules as in the previous sale deed No.1/2409 dated 08.10.1989 (Ext.5 in the series) the executants, Maina Mia had put her signature whereas in the questioned deed (Ext. C) the executant, Maina Mia put her thumb impression and below it has been noted that Mina Mia does not know to read and write and he has put the thumb impression?"

11. In course of hearing, the learned counsel appearing for

the appellants did not press for any other substantial question of

law and confined his submission within the above noted

substantial question of law.

12. Since the question revolves around the dispute

regarding thumb impression, let me peruse the reasoning and

findings thereof as arrived at by the Courts below on this issue.

13. The learned counsel for the appellants has emphasised

that while the executant-Mayna Miah had executed sale deed

No.1-2409 dated 18.10.1989 (Exbt-5) putting his signature, but,

in the disputed sale deed vide No.1-77 dated 18.01.2007 (Exbt-

C), the said Mayna Miah had put his thumb impression raising a

suspicious circumstance, in regard to his participation in the

execution of the questioned deed transferring the suit land in

favour of defendant Nos.1, 2, 3 & 4. According to learned

counsel, this fact was enough to hold the sale deed No.1-77

dated 18.01.2007 being marked as Exbt-C as forged document

which is to be declared as null and void and not binding upon the

plaintiffs.

14. The learned Civil Judge, Senior Division has dealt with

this fact in the following manner:-

"In this respect, I find, it is the plea of the plaintiffs that deceased Mayna Miah used to execute document by putting his signature and therefore thumb impression in the alleged disputed sale deed in lieu of signature without any explanation is not believable and the same is also deposed by PW.2 Achabun Nessa, the plaintiff No.1. On the contrary, it is the plea of defendant No.1 to 3 that deceased Mayna Miah is an illiterate person and executed the questioned deed by putting thumb impression as at that time he was unable to put any legible signature and the same is also deposed by DW.1 Md. Firoj Miah, defendant No.3. To corroborate the plea of the plaintiff/PW.2, the plaintiff produced Ext.5, the sale deed No.1-2409 dated 18.10.1989 but, in my view, the deed of the year 1989 cannot be a basis to say that till the year 2007(the year of execution of disputed deed) the deceased Mayna Miah was able to put legible signature.

To corroborate the plea and evidence of defendant No.1 to 3/DW.1, the defendant No.1 to 3 produced Ext.A, the mortgage deed, wherefrom, I find, in the year 08.09.1998 deceased Mayna Miah has given signature and thumb impression on the agreement dated 08.09.1998 and the signature is not very much legible. 8. DW.2 Sri Nani Gopal Deb, the defendant No.5 categorically deposed that in the middle part of January, 2017 deceased Mayna Miah met with him for writing a sale deed for transfer of his land in favour of his four sons and instructed to collect necessary stamp paper and accordingly he has written the disputed sale deed and read over the contents to deceased Mayna Miah and he obtained the thumb impression of deceased by giving a note and Mayna Miah produced the said sale deed before the Sub-Registrar and Mayna Miah was identified by Soma Paul, the deed writer. DW.3 Smt. Soma Paul also corroborated the same by deposing that on 17.01.2007 deceased Mayna Miah executed sale deed in favour of his sons and as deceased was illiterate and unable to put signature so he put his thumb impression on the sale deed written by Nani Gopal Deb in her presence and she has signed as an attesting witness and Nani Gopal Deb read over the deed to deceased Mayna Miah in her presence and deceased Mayna Miah produced the said deed before the Sub-registrar and she identified him. The above mentioned evidence is corroborated by DW.5 Sri Abani Debnath, the defendant No.7.

DW.4 Sri Sudhanya Malakar deposed that on 08.09.1998 Mayna Miah mortgaged the land by an unregistered agreement and as deceased Mayna Miah was illiterate and as his signature was illegible so he put his thumb impression in the said deed in his presence taken by Anwar Ali.

9. Considering the above mentioned evidence of DWS, I find, it is believable that deceased Mayna Miah also executed document by putting thumb impression being illiterate and unable to give legible signature. Considering the evidence of PWS and DWS, I find, the preponderance of probability lies in favour of the evidence of DWS for the evidence of DWS are corroborative to each other. PW.1 Mst. Ayesha Begum is the staff of Sub-Registry Office and from her evidence it cannot be said that it is proved that the disputed sale deed is forged. PW.3 Hasib Ali deposed nothing about the fact that disputed sale deed is forged. PW.4 Achaddar Ali also did not depose anything about the fact that disputed sale deed is forged. Thus, I find, no corroborative oral evidence is adduced by plaintiff to prove the fact that disputed sale deed is void or forged. It is the plea of the plaintiff that the plaintiffs have been possessing the suit land but on the contrary it is the plea of defendant No.1, 2 and 3 that the suit land is in their possession and in this respect in cross examination the plaintiff No.1 as PW.2 deposed that there is a building in the suit land being in possession of the defendant and the same goes against the plaintiff. From Ext.3, I find, the suit land is recorded in the name of the defendant No. 1 to 4 and the same also goes against the plaintiff."

15. The learned Appellate Court while discussing this issue

regarding the genuineness of the thumb impression being affixed

by the executants, Mayna Miah had held thus:-

"12. Issue No.IV- This is the main which is to be decided in this appeal afresh. This issue is relates with the validity of the registered deed as it was challenged by the appellants before the trial Court. In deciding this issue learned trial court opined that to corroborate the peal of the present appellants Ext.5 sale deed No.1-2409 dated 18.10.1989 cannot be a basis to say that till the year 2007 deceased Mina Miah was able to put legible signature. The ground as taken by the appellants in their appeal memo in this respect is that Mina Miah had full ability to put signature because several registered documents bearing his signature were placed and proved on record and while this suit deed Ext.C at its frontal specifically mentioned and explained that in as much as Mina Miah did not know how to read and write , so his thumb impression was taken under his permission, hence the logical equation came out thereform to the effect that either Mina Miah was illiterate or was literate and able to put his signature and there could not be any other corollary that though literate but at the time of execution of sale deed he was infirm unable to put his signature and there could not be any other corollary that though literate but at the time of execution of sale deed he was infirm unable to put his signature. So the ground of appellants is that trial court without rejecting those registered documents bearing signatures of Maina Miah quite illegally and baselessly and methodically came to the finding that it is believable that

deceased Maina Miah also executed documents by putting thumb impression being illiterate and unable to give legible signature."

16. Thereafter, the learned Appellate Court held that since

the defendants had been able to prove the questioned deed by

adducing evidence, it was the turn of the present appellants to

prove the fact of forgery or „void questioned deed‟ had been

executed by exercising fraud, collusion and misrepresentation.

17. The learned First Appellate Court having accepted the

reasoning and findings of the learned Trial Court did not find any

flaw to the execution and registration of the sale deed by Mayna

Miah over which he put his thumb impression.

18. I have given my conscious consideration to the findings

of both the Courts below. It is established principle of law that

there is strong presumption that a registered document is validly

executed. A registered document therefore, prima facie, would

be valid in law if the party relying upon the same has been able

to probe the same by adducing evidence in consonance with the

established procedure as articulated in the Evidence Act, then,

the party opposing such valid execution and registration has to

discharge his burden to prove the documents as forged and

collusive. Further, the party disputing genuinety of a registered

document would be under obligation to rebut the presumption of

genuinety by adducing cogent evidence. [Prem Singh & ors. vs

Birbal and ors., 2006(5) SCC 353- Para-27]. In the instant

case, the plaintiffs have not been able to rebut the said

presumption

19. The Apex Court has reiterated the said principle in the

case of Vishwanath Bapurao Sabale vs Shalinibai Nagappa

Sabale & Ors reported in 2009(12) SCC 101.

20. In the case in hand, indubitably, the sale deed was

executed and registered. The evidence reveals that it was Mayna

Miah who approached D.W.-2, Nani Gopal Deb for writing the

questioned deed (Exbt-C) expressing his willingness to transfer

his land in favour of his four sons. Proceeding further, he

instructed to collect necessary stamp paper. On his instruction,

D.W.-2 had written the questioned sale deed. The contents

encapsulated in the deed were read over to Mayna Miah and,

thereafter, D.W-2 had obtained thumb impression of Mayna Miah

by giving a note that Mayna Miah being illiterate had put his

thumb impression. More importantly, Mayna Miah himself had

produced the said sale deed before the Sub-Registrar when he

was identified by one Soma Paul, D.W.-3. Soma Paul by

adducing evidence as D.W.-3 had corroborated the factum of

execution and registration of the said sale deed (Exbt-3). She

has categorically stated that on 18.01.2007, Mayna Miah,

executed the questioned sale deed in favour of his sons, the

defendant Nos.1 to 4, and as Mayna Miah was illiterate and

unable to put signature, he put his thumb impression on the sale

deed scribed by Nani Gopal Deb in her presence and she had

signed as attesting witness. D.W.-3 further has stated that Nani

Gopal Deb, D.W.-2 had read over the contents of the deed to

Mayna Miah in her presence and being satisfied with the recitals,

Mayna Miah produced the said deed before the Sub-Registrar

when she identified him. The above evidence was corroborated

by D.W.-5, Shri Abani Debnath (the defendant No.7).

21. Furthermore, that Mayna Miah could not put a legible

signature would gain support from the deposition of D.W.-4, Sri

Sudhanya Malakar, who deposed that on 08.09.1998, Mayna

Miah had mortgaged a land by an unregistered agreement and

he put his thumb impression in the said mortgage as his

signature appeared to be illegible. The evidence in civil litigation

would be considered and construed keeping in view the principle

of preponderance of probabilities. I find no infirmity in the

findings of the learned Trial Court that since Mayna Miah was

able to put his signature in the year 1989, he would have the

same ability to put the same signature in the year 2007.

22. On cumulative reading of the depositions of D.W.-2,

D.W.-3 & D.W.-4, in my opinion, the sale deed No.1-77 dated

18.01.2007 is bonafide and genuine. When the beneficiaries of

the sale deed have successfully proved its due execution and

registration, onus shifts upon the party (herein, the plaintiffs)

who opposed the questioned document to prove that the said

sale deed is forged and collusive one which burden they failed to

discharge. I find all the requirements as embodied under Section

68 of the Evidence Act have been fulfilled for the execution and

registration of the questioned deed.

23. In my considered view, the way Mayna Miah had

proceeded to transfer the suit land in favour of his four sons,

clearly manifested that he intended to alienate the suit land in

favour of his said sons. It is admitted fact that said Mayna Miah

had acquired the suit land from Anowara Begam his first wife

and defendant No. 1 to 4 are the sons of Anowara Bibi clearly

manifests his intention to dispose off the suit land in favour of

defendant Nos.1 to 4 who were born out of him and Anowara

Bibi, the mother of the said defendants by executing the said

sale deed (Exbt-C). In my opinion, the execution of Exbt-C, sale

deed No.1-77 dated 18.01.2007 cannot be said to be null and

void being forged merely because a person who knows to sign

his name executes the document by putting his thump

impression as I have already held that the questioned deed has

fulfilled all the requirements of Section 67 & 68 of the Evidence

Act supported by other circumstances as aforediscussed.

[Emphasis supplied]

24. In the case in hand, another important feature which I

have noticed is that, the defendant Nos.1 to 4 came into

possession and also mutated their names in the record of right.

Mutation of names in favour of the defendants further justifies

that the deed in question was acted upon by the beneficiaries.

25. Finally, I have taken into note of the facts that the

substantial question of law as has been reproduced here-in-

above is found to be in conformity of Rule 49(1) of the Tripura

Registration Rule 1954 which provides that "when the executant

of document (1) is unable to right, or (ii) is not personally know

to the registering officer, he shall, in addition to signing his name

(in the manner indicated in rule 48 if he is unable to write),

imprint the mark of his left thumb on the document to be

registered and also in the book of thumb impressions to be kept

in Form No.4 in Appendix................"

26. After minute perusal of the questioned deed (Exbt-C), it

transpires that left thumb impression was taken by the Sub-

Registrar as Mayna Miah, the executant of the document was

unable to write and since he was not known to the registering

officer, Mayna Miah was identified by Soma Paul, D.W.3. There is

nothing on record that requirement of Section 48 and Section 49

of Tripura Registration Act, 1954 have not been complied with.

27. After perusal of the sale deed, I find that the

executant-Mayna Miah had put his left thumb impression and his

full name was written in each and every pages of the deed. The

scribe-Nani Gopal Debnath, D.W.-2, has identified his left thumb

impression (LTI) and the scribe himself has written his full name

as mark of identification in each and every pages. At the time of

registration, the thumb impression was obtained by Soma Pal,

D.W.-3 and she has written the full name of Mayna Miah just

beneath the Left Thumb Impression (LTI) of Mayna Miah as a

mark of identification. In this connection, Rule 47 of the Tripura

Registration Rule 1954 also may be relevant which is as under:-

"IDENTIFICATION OF EXECUTANT.

47(1) When the registering officer is not personally acquainted with the executants of a document presented for registration, he shall require them to furnish the best testimony obtainable to establish their identity, such as that of person known to the registering officer or that person of apparent respectability.

(2) The registering officer shall satisfy himself that the identifier is really acquainted with the person or person whom he proposes to identify; and the identifier shall be asked to state the name of the person to be indentified, and also whether such person is really the person who he professes to be."

28. In the instant case, both D.W.-2 and D.W.-3 being the

deed writers of the office of the Sub-Registrar, Kailashahar must

be known to the Sub-Registrar, who being satisfied finally

endorsed the deed. There is no evidence on record that the Sub-

Registrar, was not satisfied about the identification of the

executant and the deed writers as well.

29. In the light of the above discussions both on factual

and legal aspects, the substantial question of law as formulated

in this second appeal has been answered holding that a

document/instrument cannot be declared null and void solely on

the ground that a person who knows to sign his name executes a

document by affixing his thumb impression. In the instant case, I