Md. Shah Alam Vs. Md. Islam and others, 1 ADC (2004) 294

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. Mahmudul Islam,,

Citation: 1 ADC (2004) 294

Case Year: 2004

Appellant: Md. Shah Alam

Respondent: Md. Islam and others

Subject: Law of Evidence, Procedural Law,

Delivery Date: 2004-5-26

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzal Islam J
 
Md. Shah Alam
……….................Appellant
Vs.
Md. Islam and others
..............................Respondents
 
Judgment
May 26, 2004.
 
Evidence Act, 1872
Sections 11,111,101,114(e)
….infirm, illiterate and pardanshin woman and there being a fiduciary relationship between her and the respondent No.1 onus lay on the other side to reflute the allegation and charges brought by late Fatema Khatun, a pardanshin lady and the High Court Division erred in law in not applying section 111 of the Evidence Act which makes special provision for the pardanshin and illiterate woman specially when there is nothing on record to show that the contents of the gift as well as the solenama had been explained to late Fatema Khatun and that the understood the same and that some disinterested and competent person with a fair understanding of the whole matter advised her. …. (5)
 
Cases Referred To-
1985 BLD Ad 54; 1986 BLD 173.
 
Lawyers Involved:
Abdul Momin Chowdhury, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For the Appellant.
Mahmudul Islam, Senior Advocate, instructed by ASM Khalequzzaman, Advocate-on-Record-For Respondent No. 1.
Not represented-Respondent No. 2.
 
Civil Appeal No.103 of 1998.
(From the Judgment and Order dated August, 1994 passed by the High Court Division in Civil Revision No.36/86 (Chittagong)/Civil Revision No.1806 of 1991 (Dhaka).
 
JUDGMENT
 
Md. Tafazzul Islam, J.
 
This appeal by leave arises out of the judgment of a Single Bench of the High court division dated 7.8.1994 in civil Revision no. 1806 of 1991 making the rule absolute thereby setting aside the judgment and decree dated 16.9.1985 passed by the learned Subordinate Judge, 1st Commercial Court, Chittagong in Other Appeal No. 475 of 1985 and affirming the judgment and decree dated 27.6.1989 passed by the Munsif 2nd Court, Chittagong Sadar in Chittagong dismiss­ing the Suit.
 
2. Mrs. Fatema Khatun (now dead), the mother of the appellant instituted the above Other Suit No. 247 of 1978, where in the respondent No.1 and the appellant were impleaded as pro forma defendant Nos.1 and 2 respectively. Praying for a declaration that the agreement of compromise dated 20.7.64 as well as the compromise decree passed on 11.6.64 in Other Suit No.75 of 1963 of the 2nd Court of Munsif, Sadar, Chittagong had been obtained fraudulently by respondent No. 1 in Collusion with his accomplice, Abdul Mabud Sawdagar (since dead) and those are not binding upon her and also upon the pro forma defendant No. 2 and her interest had not been affected in any way thereby, stating inter alia that respondent No.1 is her son by her first marriage with one Md. Ishaque; the properties described in the schedule of the plaint belonged to her father Abdul Gani Chowdhury who died leaving Amena Khatun (wife) and her (daughter) as his only heirs; after the death of her first husband she married late Mvi. Md. Mostafa with whom she lived in her paternal house and two sons, one being dead and the other being the appel­lant and one daughter were born out of her sec­ond marriage after the death of her second hus­band, she continued to live in her paternal house with her three children the respondent No. 1 who was by then an adult grew inordinately worldly minded and he by practicing fraud upon her and Amena Khatun, Secured the exe­cution and registration of two deeds of gift dated 31.1.41 and 1.5.51 shown to have been executed by her and Amena Khatun and she and Amena Khatun remained ignorant of the con­tents there of after corning to know about the two deeds of gift dated 31.1.41 and 1.5.51 she and Amena Khatun nullified the said deeds of gift by a registered deed of revocation dated 10.2.56 and she continued to keep in her pos­session all her inherited properties when she sold part the properties described in the sched­ule of the plaint to the appellant by a registered Kabala dated 23.12.62 the respondent No.1 instituted O.S. No. 75 of 1963 against her lay­ing claim to a part of the said properties on the basis of the nullified deeds of gift dated 31.1.41 and 1.5.51 at that time one Abdul Mabub Sawdagar who was closely related to both the parties, offered his services for effecting a com­promise and in complete reliance upon him, she put her L.T.I on some blank sheets of paper upon the representation of the said Abdul Mabud Sawdagar to the effect that those would be required for effecting the compromise and later on she was also told that a compromise had been effected on the terms that the respon­dent No.1 would admit her ownership and khas possession on the properties of the Suit and that she would give some land to respondent No.1 as she thought fit later on it transpired that a com­promise decree was passed in the said suit on the terms that the two deeds of gift dated 31.1.41 and 1.5.51 were valid and hence the suit.
 
3. The respondent No. 1 contested the suit and filed written statement stating inter alia that it was the appellant who by means of a false thumb impression in the name of Fatema Khatun instituted the above sit the suit was barred by limitation both the deeds of gift and also the compromise petition were read over and explained to Fatema Khatun and she after knowing the contents put her thumb impression on these and no fraud was practiced upon Fatema Khatun as alleged.
 
4. The trial Court dismissed the suit, the lower appellate Court allowed the appeal and decreed the suit and in revision the High Court Division made the Rule absolute and dismissed the suit.
 
Leave was granted in the following terms:-
 
"Mr. A. F. Hasan Arif, learned Advocate for the plaintiff petitioner, submits that the High Court Division fell into an error of law in holding that the onus to prove lay upon the plaintiff inasmuch as the plaintiff being an infirm, illiterate and pardanashin woman the onus squarely lay on respondent No. 1 to prove that the dis­puted solenama was voluntarily execut­ed by the plaintiff on understanding the true import there of. He next submits that the trial court and the High Court Division misdirected themselves by relying on section 101 instead of section 111 of the Evidence Act which makes special provision for pardanshin, illiterate women. He next submits that the High Court division erred in law in holding that the suit was barred by lim­itation as the plaintiff based her suit on the allegations that the acting of solenama and compromise decree were mere­ly paper transactions and that she came to know for the first time about the compromise decree when respondent No.1 tried to get his name recorded in the B.S. Khatians and When she became fully aware after taking certi­fied copies on 27.11.78 within 3 years of which she filed the instant suit. Finally, Mr. Arif submits that the High Court Division acted in excess of its jurisdiction in interfering with the find­ing of fact by the final court of fact the lower appellate court, on untenable grounds causing miscarriage of jus­tice." 
 
5. The learned Counsel appearing for the appellant submits that the High Court Division failed to consider that late Fatema Khatoon, being infirm, illiterate and pardanshin woman and there being a fiduciary relationship between her and the respondent No.1 onus lay on the other side to refute the allegation and charges brought by late Fatema Khatun, a pardanshin lady and the High Court Division erred in law in not applying section 111 of the Evidence Act which makes special provision for the pardan­shin and illiterate woman specially when there is nothing on record to show that the contents of the gift as well as the solenama had been explained to late Fatema Khatun and that the understood the same and that some disinterest­ed and competent person with a fair understand­ing of the whole matter advised her the High Court Division failed to take notice of the fact that late Fatema Khatoon appointed Mr. Delwar Hussain as her Advocate and the filing of the compromise petition without the signature of the above advocate engaged by her indicates the fraudulent act on the part of the respondent No.1. The High Court Division erred by holding that the suit was clearly barred by limitation in as much as the alleged Solenama and the writ of delivery of possession are merely paper transac­tions and that late Fatema Khatun for the first time came to know about the alleged compro­mise when the respondent No.1 tried to get his name recorded in B.S. Khatian on the basis of the same and that Fatema Khatun on obtaining certified copy of the Solenama become fully aware of it and she then filed the suit on 27.11.1978 well within three years from his date of knowledge the High Court Division failed to consider that Order Nos.19, 20 and 21 of Other Suit No.75 of 1963 do not suggest or imply that late Fatema Khatun executed the solenama understanding the true import of the solenama rather the petition of solenama shows that Order No. 21 dated 6.8.84 was founded on misreading inasmuch as the solenama in Partition Suit No.75 of 1963 was not signed by any advocate appearing on behalf of late Fatema Khatun and the appellant specially when by the said gifts and solename late Fatema khatun has been divested of all her properties.
 
6. Mr. Mahmudul Islam, the learned coun­sel for the respondents, submits that in view of the admitted fact that the plaintiff having revoked the deeds of gift by registered deed of revocation and the respondent No.1 having filed Partition Suit No. 75 of 1975 against late Fatema Khatoon and the appellant, the respon­dent No.1 cannot be taken to have been in a position of active confidence of late Fatema Khatun; Section 111 of the Evidence Act has no application in the present case and the burden was on the plaintiff, late Fatema Khatun, to prove the allegation of fraud in effecting com­promise and the High Court Division rightly applied the provision of section 101 of the Evidence Act the plaintiff late Fatema Khatun was accompanied by the appellant, her second son, who attested her left thumb impression and at that time brother of late Fatema Khatun was also present and as such the question of practic­ing fraud on late Fatema Khatun by the respondent No.1 did not arise in view of the presence of the appellant and the brother of late Fatema Khatun the plea of the plaintiff of being a pardanshin lady is of no avail because in such case the sole question for consideration is whether late Fatema Khatun had lack of independent advice.
 
7. Regarding the contention of the appellant that the compromise decree was fraudulently obtained by the respondent No.1 in collusion with Abdul Mabud Sowdagar, an influential person, who obtained the left thumb impression of late Fatema Khatun on the blank sheet of paper giving her the understanding that by those papers the suit would be compromised keeping her ownership in the suit held intact, it appears that the trial court referring to Order Nos. 11 20 and 21 of Other suit No.75 of 1963 found that solenama executed on 27th July 1964 contained the thumb impression of late Fatema Khatun and also the signature of the appellant attesting the thumb impression of late Fatema Khatun and further none had objected to the above compromise for a long time. The trial court as it appears in details gave the reasons for arriving at the finding that the solenama has not been obtained by fraud but as it appears the lower appellate Court, without adverting the reasons given by the trial court, reversed the above find­ing merely relying on the statement of the respondent No. 1 in his deposition to the effect that late Fatema Khatun was a simple illiterate and pardanshin lady. The High Court Division relying on the decision reported in 1985 BLD Ad 54 held that the above finding of reversal of the lower appellate Court can not stand as it did not discuss the part of the judgment of the trial court whereby it came to the conclusion that solenama has not obtained by fraud.
 
8. Regarding the contention of the appellant that late Fatema Khatun being an illiterate and Pardanshin lady the onus of proving that the contents of the solenama was explained to her and she understood the contents there of lay on the respondent No.1 the High Court Division held that no such averment was made in plaint to the effect that late Fatema Khatun, the plain­tiff, was a Pardanshin lady and in the plaint it was merely stated that she was suffering from disease due to old age and the lower appellant court merely relying on the deposition of the respondent No. 1 to the effect that the plaintiff was an illiterate and simple lady held that the late Fatema Khatun, the plaintiff admittedly being illiterate and Pardanshin lady it was the duty of the respondent No.1 advert the allega­tions put up by her against the respondent No.1. The lower appellate court however did not con­sider the deposition of the respondent No.1 to the effect that he could not say whether his mother and maternal grand mother knew how to sign or not. The High Court Division on consid­eration of the fact that on the death of her hus­band the plaintiff married for the second time and used to live with her second husband and out of this wedlock two sons including the appellant and one daughter were also born and that the appellant in his deposition stated that when the alleged gift was made by his mother in the years 1941 and 1951, he was a major and the second husband of the plaintiff was also alive at that time, the deeds of gift dated 1941 and 1951 were not likely to be executed by her without understanding the contents there of and it is also unlikely that she signed those merely under the influence of the respondent No. 1 spe­cially when late Fatema Khatun in her own dep­osition admitted that solenama was made in plain sheet of papers where in she put her left thumb impression while in the Court premises in the presence of the appellant her son, who attested her thumb impression and at that time her brother was also present.
 
9. However as it appears, the High Court Division, on consideration of the fact that late Fatema Khatun herself filed the present suit and appeared in the court premises with her major son the appellant and signed the solenama, held that she cannot be presumed to be Pardanshin lady and accordingly the contents of the solenama was not required to be explained to her in terms of section 111 of the Evidence Act. However even if for arguments sake this obser­vation of the High Court Division to the effect that late Fatema Khatun was not a Pardanshin lady is taken to be wrong, this will not effect in the merit of the case because even then question will remain whether late Fatema Khatun had lack of independence advise. As it appears dur­ing her cross examination late Fatema Khatun admitted that at the time of putting her thumb impression on the Solenama the appellant as well as her own brother was present and the appellant attested her thumb imprison. So there was no lack of independence advice. Further mere relationship of mother and son will not ipso facto attract section 111 of the Evidence Act and it has been held in 1986 BLD 173 that some more factors are also needed to attract section 111 of Evidence Act which are not available in the present case.
 
10. Regarding contention of the appellant that in view of the facts and circumstances of the present case and specially the fiduciary rela­tionship between late Fatema Khatun and the respondent No.1 as mother and son it was incumbent upon the respondent No.1 to explain to late Fatema Khatun, about the contents of the solenama as required under section 111 of the Evidence Act, it appears that in the present case the respondent No.1 in Other Suit No. 75 of 1963 claimed that suit land from his mother asserting that she has gifted the same to him whereas late Fatema Khatun took the defense that the respondent No.1 obtained those by practicing fraud and after coming to know about it she revoked the said gifts and consider­ing the aforesaid circumstances the High Court Division found that there being such a dispute between the mother and the son no fiduciary relationship did exist between them and at the relevant time the respondent No.1 had not been in active confidence of his mother accordingly the provision of section 11 did not apply in the present case and since late Fatema Khatun asserted that the solenama was fraudulently obtained by the respondent No.1 in collusion with late Abdur shabur Sowdagar in terms of section 101 of the Evidence Act the burden there fore lay on her to show that solenama was obtained by fraud.
 
11. Regarding limitation, the trial Court on the basis of the statement made in the plaint, written statement and deposition of the witness­es held that the plaintiff was aware of the com­promise and the suit not being filed within three years from the date of knowledge is barred by limitation. However the lower appellant court merely on consideration of the fact that plaintiff was a Pardanashin lady held that the suit was not barred by limitation. The High Court Division however on consideration of fact that final decree was passed on the basis of report of the Advocate Commissioner and that order no. 5 dated 8.4.68 of the Execution Case shows that delivery of the possession in the above execu­tion case was duly executed and possession was also delivered 28.3.68 and no objection was also raised, the suit is barred by limitation.
 
12. Regarding the contention of the appel­lant that Order Nos. 11, 20 and 21 of Other Suit No.75 of 1963 and the writ of delivery of pos­session of the Execution Case are mere paper transactions and were concocted fraudulently, it appears that in terms of the provisions of sec­tion 114 (e) of the Evidence Act, there is a pre­emption that the above compromise decree was duly passed and the writ of delivery possession was duly executed and there is nothing on record to show other wise. Since the plaintiff could not controvert the above presumption by producing materials before the court, the plea that the above order sheet and writ of delivery of possession were mealy paper transaction cannot stand.
 
13. Having given our anxious consideration to the facts and circumstances and the evidence on record we find that the High Court Division considered the matter in its proper prospective and we find no irregularity or illegality in the decision of the    High Court Division. Accordingly the appeal is dismissed without any order as to costs.
 
Ed.