Appellate Division
(Civil)
PARTIES
Mustafizur Rahman ………………………………………………Appellant
Vs
Md. Amjad Hossain……………………………………………….Respondent
JUDGES
Md. Ruhul Amin J
M. M. Ruhul Amin J
Date Judgment
24th October 2005
Whether Evidence is admissible given by Pardanashin women.
Paresh Chandra Bhowmick Vs. Hiralal Nath 36 DLR(AD) 156.
Siddique Ahmed Chowdhury Vs. Gani Ahmed in 33 DLR(AD) 1.
Rokeya Khatun Vs. Alijan® Alijan Bepari and others reported in 34 DLR (AD) 266.
The question of special onus with regard to a transaction entered into with a pardanishin lady and the question of proof of an independent advice is indispensable in case of a transaction where the protection to a pardanishin woman is available came up for consideration (10)
Special rule of onus has been devised to give protection to certain categories of women in Indian sub-continent who suffer from some social disabilities because of purdah system applies to all pardanashin women literate or illiterate.
Civil Appeal No. 230 Of 2003
(From the Judgment and Order date June 12, 2002 passed by the High Court Division in Civil Revision No. 2214 of 1994)
The criteria is whether she is a pardanashin or not. It is, of course, a question of fact. Next we get, that the protection granted to the pardanashin ladies has been extended to ignorant and illiterate women through not strictly speaking pardanashin (10)
The rule is for the protection and should not be so applied as to make it either a disability in the exercise of her full right to the property or to convert a bonafide transaction into one of suspicion and make it subject matter of frivolous litigation (12)
The law is now settled that one who alleges fraud for setting particular transaction, the burden lies on him (19)
ADVOVATES
A. S. M. Khalequzzaman, Advocate-onrecord. For the Appellant.Mahbubey Alam, Senior Advocate, instructed by A.K.M. Shahidul Huq, Advocate-on-record. For the Respondent
JUDGMENT
1. Md. Ruhul Amin J:- This is defendant’s appeal by leave against the judgment of June 12, 2002 of a Single Bench of the High Court Division in Civil Revision No. 2214 of 1994 making the Rule absolute upon setting aside the judgment and decree dated January 30, 1994 of the Court of Joint District Judge and Artha Rin Adalat, Jessore in Title Appeal No. 301 of the 1990 affirming those of dated October 21,1990 (in the leave granting order inadvertently written June 29,1983) of the court of Assistant Judge, Jikargacha, Jessore (in the leave granting order inadvertently written 2nd Court of Munsif, Jessore) in Title Suit No. 36 of 1989 (in the leave granting order inadvertently written 2nd Court of Munsif, Jessore) in Title Suit No. 36 of 1989 (in the leave granting order inadvertently typed Title Suit No. 417 of 1978) dismissing the same. The suit was filed seeking declaration that the Heba-bil-ewaz deed bearing No. 364 of 1989 executed on 5.2.1989 and presented for registration on 7.2.1989 in respect of the property described in the schedule attached to the plaint is fraudulent, forged, fabricated, void, collusive and not binding on the palintiff.
2. The plaintiff (since deceased) was the maternal grand mother of the defendant and she executed and registered 2(two) Hebabil-ewaz deeds on the date as mentioned hereinbefore in favour of the defendant, herein the appellant, grand child through her predeceased daughter Rokeya and another in favour of a daughter of the palintiff.
3. Facts averring which the suit was filed in short, are that the defendant i.e. the appellant herein, is her grand son through her deceased daughter Rokeya, that she is an old blind and illiterate woman and she was taken to Jikargacha for treatment and on that date i.e. 22nd Magh, 1395 B.S. defendant fraudulently obtained her thumb impressions on some papers and later on by using those papers brought into existence Heba-bil-ewaz deed in his favour in respect of the land measuring 1.67 acres. It is also the case of the palintiff that she never intended to execute any Heba-bil- ewaz deed in infavour of the defendant and that the said Heba-bil- ewaz deed was not acted upon since she is in possession of the property and enjoying the same, that she became certain about the Heba-bil-ewaz deed so
created by the defendant No. 1 upon obtaining certified copy thereof on February 14,1989.
4. The suit was contested by the defendant by filing written statement denying the material averments made in the plaint and stating inter alia, that the plaintiff used to live with her son Amjad Hossain and he sold some of his property as well as the property of the plaintiff and he appropriated the money got upon selling plaintiff’s land. The said conduct of her son Amjad annoyed the plaintiff, that Amjad Hossain used to misbehave with her and also used to torture her to grab her property, that Amjad Hossain made demand of the share of the land which he would get after death of the plaintiff, that the plaintiff gave land to Amjad Hossain which he would have inherited from her mother but still then he demanded share from the land that was with the plaintiff after transferring to
Amjad Hossain which he would have inherited from her mother but still then he demanded share from the land that was with the plaintiff after transferring to Amjad Hossain, that in the background of the said fact the plaintiff decided to make gift of her property infavour of her two daughters, Rahela and Khatun Bibi as well as in favour of the defendant who is the son of her deceased dauther Rokeya Khatun, that Khatun Bibi as well as in favour of the defendant who is the son of her deceased daughter Rokeya Khatun that Khatun Bibi being well off declined the proposal of her mother and asked her mother to make a gift of the property in favour of Rahela and the defendant and thereupon the plaintiff on her free will made the gift in favour of Rahela and the defendant and thereupon the plaintiff on her free will made the gift in favour of Rahela and the defendant and that the defendant went into possession of the property so gifted to him and enjoying the same. It is the contention of the defendant that the plaintiff being forced by her son Amjad Hossain filed the suit making untrue statements.
5. It may be mentioned during the pendency of the suit Rativan Bibi, the plaintiff, died leaving her heirs i.e. her sons Amjad Hossain and Abul Hossain, daughters Rahela and Khatun Bibi.
6. The trial Court dismissed the suit on the finding taht the suit is not barred by limitation,
that the Heba-bill- ewaz deed is a genuine one, that Rativan Bibi executed and registered the deed in question on her free will, that allegation of fraud in the execution and registration of the document has not been established, that Rativan Bibi executed two deeds on the same day, one in favour of her dauther Rahela and another in favour of the defendant but she is questioning only the genuineness of the document executed and registered in favour of the defendant and as regard the other document no complaint has been made and no relief has been sought against the other document i.e. Heba-bil- ewaz deed made in favour of Rahela, daughter of Rativan Bibi. The trial Court also held that the suit was not maintainable since plaintiff being a party to the document did not pray for cancellation of the same but filed the suit seeking merely declaration that the deed is fraudulent and not bending on her.
7. As against the judgment and decree of the trial Court the plaintiff went on appeal but without any success.. Thereupon the plaintiff moved the High Court Division in revisional jurisdiction and obtained the Rule. 8. The High Court Division made the Rule absolute on the finding ” the original palintiff Rativan was definitely an old lady. The very fact that plaintiff allegedly executed the haba-bil-ewaz- deed by putting her left thumb impression clearly proved that she was an illiterate lady and as such burden was upon the defendant, namely, the recipient of the deed to prove that she executed and registered the same having independent advice and was fully aware about the contents of the deed following the principle of special onus of proof not a single natural independent witness deposed that Rativan executed and egistered the heba-bil-ewaz in question voluntarily having been fully aware about its contents. Thus, the defendant failed to discharge his special onus “
9. Leave was granted to consider the contentions that the High Court Division failed to consider the material fact that on the self same date another Heba-bil-ewaz deed was execcuted and registered by Rativan Bibi, the plaitiff, in favour of her dauthter, Rahela and no execption was taken by the plaintiff as regard the said Heba-bil-ewaz deed resorting to the plea of Rativan’s being old, illiterate and ‘pardanishin’ nor any plea was taken in respect of the Heba-bi- ewaz deed in favour of Rahela that the said deed was not acted upon, that D.W.6 as independent witness deposed taht he new Rativan Bibi and he identified the thumb impression of Rativan Bibi in the deed in question and that he was present at the time of execution of the deed in question, that D.W.2 stated that he new stated that he new Rativan Bibi and he read over the contents of the deed in question to Rativan and thereupon she upon being fully aware about the contents of the document voluntarily executed the deed by putting thumb impressions but the High Court Division did not consider the evidence of these witnesses.
10. The question of special onus with regard to a transaction entered into with a Pardanishin lady and the question of proof of an independent advice is indispensable in case of a transaction where the protection to a Pardanishin woman is available came up for consideration before this Division in the case of Siddique Ahmed Chowdhury and others Vs. Gani Ahmed and others reported in 33 DLR(AD) 1. (also reported in 1979 BSCR, 375) and after reviewing good number of cases it has been observed “On a review of the authorities cited above, it is manifest that this special rule of onus has been devised to give protection to certain categories of women in Indian sub-continent who suffer from some social disabilities because of purdah system. Pardanshin women are excluded from social intercourse, except with very near relations and communion outside the narrow family circle is barred to them. It applies to all pardanashin women literate or illiterate. The criteria is whether she is a pardanashin or not. It is, of course, a question of fact. Next we get, that the protection granted to the pardanashin ladies has been extended to ignorant and illiterate women through not strictly speaking pardanashin.
11. If in a case of transfer by a pardanshin lady, a dispute arises as to its validity, the onus is always on the party who seeks to hold the transferor to the terms of the deed to satisfy the Court on evidence that she substantially understood the disposition and she executed the deed with full understanding of what she was doing effect of the transaction. It is to be observed that independent advice by itself is not an essential burden to be discharged, unless there are some special circumstances calling for its application, in that the donee or the transferee stood in a position of active confidence or had fiduciary relationship with the pardanshin lady. It is only in such cases, the donee or transferee will carry the additional burden to prove that the lady had independent and disinterested advice from persons other that the recipient of the document.
12. In the aforesaid case the question whether the rule of special onus laid down for the protection of pardanashin women can be extended to a person other that the pardanshin lady but claiming interest through her and in that connection it has been observed ” It is true taht there is some observation in the authorities cited above, which is apt to lead one to think that whenever there is a challenge to the validity of a document executed by a pardanashin woman, though she might not herself be a party to the suit or challenging it, any person claiming through her impeaching validity of the disposition may also get the benefit of the special rule of onus granted to her. Could this rule be extended to this extent ? We think, though it is difficult to spell out the said onus from the cited authorities, nonetheless the ambiguity of the language is there and it requires clarification
in the social context of the day, when there has been active steps for emancipation of women and the social condition has greatly changed and is changing.
13. To allow the special rule of onus granted to the pardanashin lady herself, will not only be a retrograde step, but may in many cases work to the disability of the lady. The rule is for the protection and should not be so applied as to make it either a disability in the exercise of her full right to the property or to convert a bonafide transaction into one of suspicion and make it subject matter of frivolous litigation. This will be more so, when there will be distance of time and the disputing parties will be persons other than original parties to the deed. It may be that the party relying on the special rule of onus might be claiming adversely to her.
14. The question of special onus also came up for consideration before this Division in the case of Rokeya Khatun Vs. Alijan@ Alijan Bepari and others reported in 34 DLR (AD) 266. Therein it has been observed “once it is shown that the impugned disposition was by a pardanashin woman the burden lies upon the party or parties who set up and rely on the impugned deed of disposition to show that the deed had been explained to and understood by the party under the disability. Thus, so for as the burden to prove that the pardanashin woman had full knowledge and comprehension about the terms of the disposition, and that it was her mental act. is upon those who want to uphold the disposition” In the case the question of extension of the rule of special onus laid down for protection of pardanashin woman whether can be extended to a person other than the pardanashin lady but claiming interest thought her also considered in the background of the observation made in the case of Siddique Ahmed Chowdhury and others Vs. Gani Ahmed and others reported in 33 RLR(AD)1.
15. The proposition of law relating to special burden of prove in respect of the Hebe-bil-ewaz deed in question if considered in the background of the admitted facts that on the self same date Rativan Bibi executed 2 Heba-bil-ewaz deeds, one in favour of the defendant who is the son of Rativan Bibi’s deceased daughter Rokeya and another in favour of Rativan Bibi’s deceased daughter Rahela and that as no exception was taken in respect of the Hebabil-ewaz deed in favour of his grand son through her daughter at the relevant time deceased and in favour of her another daughter totally of her own free will and she (Rativan Bibi) executed the deed being fully aware of the contents thereof and the nature of the transaction as deposed by the D.Ws. 2 and 6 in respect of whom hardly any exception legally sustainable can be taken. It is seen from the judgment of the High Court Division that while the said Division considering the transaction in question in favour of the defendant referring to the concept of special onus with regard to a transaction entered into by a pardanashin lady failed to consider the material fact that Rativan Bibi on the same date executed 2(two) documents, one in favour of the defendant and other in favour of her daughter Rahela and registered the same subsequently on the same date, but taking exception only in respect of the transaction in respect of the defendant. It has already been mentioned that the defendant has established by the evidence of D. Ws. 2 and 6, that Rativan Bibi, the grand mother of the defendant executed the document in favour of the defendant after being aware of the nature of the transaction.
16. In the instant case another important question of law escaped the notice of the High Court Division as to maintainability of the suit. The trial Court dismissed the suit amongst other on the finding that the suit was not maintainable since Rativan Bibi being party to the document, in respect whereof declaration was sought was required to ask for cancellation thereof.
17. The High Court Division while setting aside the concurrent judgment of the courts below was of the view that defendant on whom there was special burden was required to establish that Rativan Bibi (an illiterate lady), executed and registered the same “having independent advice and was fully aware about the contents of the deed”. 18. It has already been mentioned that on the selfsame date Rativan Bibi executed 2 Heba-bil-ewaz deeds, one in favour of the defendant and another in favour of her daughter Rokeya and lateron registered the same. The date of presentation of the deeds for registration is the same. D.W.2 has deposed that he read over the document to Rativan Bibi and thereafter she executed the deed. D.W.6 has deposed about the execution of the deed by Rativan Bibi. The very fact that Rativan Bibi is taking only exception in respect of the transaction made in favour of the defendant but not taking any exception in respect of transaction made in favour of her daughter Rokeya demonstrates that she was quite aware of the nature of the transaction made infavour of the recipient of the Heba-bil-ewaz deeds executed by her. The undenied fact is taht defendant is the grand son of Rativan Bibi through her predeceased daughter Rokeya i.e the mother of the defendant was dead at the time of making the transaction, Hebabil-ewaz deed in favour of the defendant and in the background of the said fact the transaction in question in favour of the defendnt by Rativan Bibi was quite probable since she has already allotted the property to her sons which they would have inherited on her death.
19. The plaintiff has filed the suit alleging fraud in bringing into existence the deed in question. The law is now settled that one who alleges fraud for setting particular transaction, the burden lies on him. In this connection reference may be made to the case of Harmes and another Vs. Hinkson reported in AIR 1946 P. C 156 and the case of Paresh Chandra Bhowmick Vs. Hiralal Nath and others reported in 36 DLR(AD) 156.
20. That the transaction in question was not the product of fraud or undue influence is evident from the fact as stated hereinbefore, that Rativan Bibi on the same date executed 2 Heba-bil-ewaz deed, one in favour of the defendant and another in favour of her daughter and lateron registered the said deeds on the same date, but taking exception only in respect of the transaction made in favour of the defendant. Had the transactions were the product of fraud, coercion or undue influence or had the transactions been not the product of Rativan’s free will and that had the Hebabil-ewaz deeds were not executed and registered by her without understanding the nature of the transaction and of being unaware of the contents of the documents, Rativan Bibi would in the normal course of conduct and behavior have taken exception to both the transactions instead of that she is taking exception only in respect of one transaction i.e. the transaction which was made in favour of the defendant and this shows lack of bonafide on her part and that she being influence by some other interested persons, as contended by the defendant by the sons of Amzad, one of the sons of Rativan Bibi, instituted the suit.
In the background of the discussions made hereinbefore we find merit in the appeal. Accordingly the appeal is allowed without any order as to costs.
Source: III ADC (2006) 319.