Mosammat Kamran Nessa Vs. Haji Hafez Md. Sharif Uddin and others, 3 LNJ (2014) 355

Case No: Civil Revision No. 2866 of 2010

Judge: Md. Rezaul Hasan,

Court: High Court Division,,

Advocate: Mahbubey Alam,Mr. Md. Zakir Hossain,Mr. Md. Harun-Or-Rashid,Mr. A. F. M. Mesbahuddin,,

Citation: 3 LNJ (2014) 355

Case Year: 2014

Appellant: Mosammat Kamran Nessa

Respondent: Haji Hafez Md. Sharif Uddin and others

Subject: Gift, Legitimate Expectation ,

Delivery Date: 2014-03-3


HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
Md. Rezaul Hasan, J.

Judgment on
13.03.2014
  Mosammat Kamran Nessa
. . . Petitioner
-Versus-
Haji Hafez Md. Sharif Uddin and others.
... Opposite Parties
 
 
Transfer of Property Act, 1882 (Act No. IV of 1882)
Section 123
Handing over of possession of a gifted property, gift being made between blood relations, like parent and children, does not and should not require physical evacuation of the doner or physically giving up possession of the gifted property by the doner. Handing over of possession, in such a case, can be proved by evidence like the mutation of name of the donee, opening Khatian in his name, payments of Khajna/ tax etc. by him, as has been done in this case. Because, in case of such a gift, made out of love, care and concern between the parties, a legitimate expectation to live jointly, as family members, is supported by long prevailing custom of our society. It is legitimate expectation of the donor to reside with the donee based on their peculiar relationship as mother and son. The doner, in such case, shall be deemed to have acquired the status of licensee to reside in the suit property. Therefore, for ends of justice, the defendants Nos.1, 2 and 3 are hereby directed to maintain status quo in respect of peaceful living of the plaintiff and of her attendants, if any, in the suit property (in the ground floor, or at any other floor to be determined by the donee), during her life time. In the facts of this case, the plaintiff is estopped, it is to be confirmed as well, to deny the title and possession of the defendants in the suit of properties and she has no legal right to let out or to transfer or to enjoy the usufruct of the suit property. . . . (25 and 26)

GOB Vs. Md. Mosharraf Hossain 32 BLD (AD) 2012 and Azzad Hossian Vs. State, 62 DLR (AD) 28 ref.

Mr. Mahbubey Alam, Advocate with
Mr. Md. Harun-or-Rashid, Advocate
. . . For the Petitioner

Mr. A. F. M. Mesbahuddin, Advocate with
Mr. Md. Zakir Hossain, Advocate       
.... For the Opposite Party Nos.1, 2 and 3.

Civil Revision No. 2866 of 2010
 
JUDGMENT
Md. Rezaul Hasan, J.
 
This Rule under section 115(1) of the Code of Civil Procedure (CPC) has been issued at the instance of the plaintiff-petitioner calling upon the opposite party Nos.1-3 to show cause as to why the judgment and order dated 30.5.2010 (decree signed on 7.6.2010) passed by the learned Additional District Judge, 6th Court, Dhaka, in Title Appeal No.274 of 2009 allowing the appeal and reversing the judgment and order dated 01.06.2009 (decree signed on 8.6.2009) passed by the learned Assistant Judge, 8th Court, Dohar, Dhaka, in Title Suit No.4007 of 2008, thereby dismissing the suit, should not be set aside or such other order be passed this court may seem fit and proper.

Facts, in short, for the disposal of the Rule are that the petitioner Mst. Kamran Nessa has filed Title Suit No.4007 of 2008 on 10.7.2008 against the opposite parties, being defendant Nos.1, 2 and 3 in the said suit, before the court of learned District Judge, Dhaka, as by that time the central filing system has been introduced. The said suit was transferred to the learned court of Assistant Judge, Dohar Court, Dhaka. In the plaint it has been stated that, the suit property, described in the schedule, was transferred to the plaintiff (petitioner) by a sale deed executed on 9.12.1971 and registered on 18.1.1972, as deed No.314; that her husband Alhaj Faizuddin died on 16.2.1982, leaving 4 sons namely (1) Haji Kamaluddin (ii) Haji Hafez Sharif Uddin (defendant-1) (iii)  Haji Taizuddin and (iv)Haji Md. Nasir Uddin and 3 daughters, namely (I) Kaniz Fatema (ii) Mst. Anessa Khatoon and (iii) Raisa Khatoon and all  heirs of the deceased had become successors to the property of the deceased Faizuddin; that in the last part of the year 1994, the defendant No.1 brought a written paper before the plaintiff and told that her signature was required for the purpose of business and the plaintiff, having concern about the welfare and prosperity in the  life of  her son, had signed that document at the request of defendant No.1 (her second son), but the contents of the said deed was neither read over nor explained to her, and, as such, she had signed the document on good faith; that thereafter the defendant No.1 had got the suit land mutated in his own name on the basis of that deed and has also secured other documents showing him as owner of the suit property; that from the local revenue  office she  came to learn that the suit property, that also  includes a residential building, was stated to have been orally gifted by her on 1.11.1994 to the defendant No.1 and that she had accordingly executed an affidavit on 10.12.1994, recording the fact of making the oral gift, in presence of 3 witnesses and of a  notary public who has attested the said affidavit; that the plaintiff had never made any oral gift on 1.11.1994 in favour of defendant No.1, as recorded in the said affidavit dated 10.12.1994, and that she never went to the office of the notary public, however, she has put her signature below the affidavit without knowing about the contents of the said affidavit; that there was no question of making oral gift of entire property to defendant No.1, as because she has other children too; that in the residential building of the suit property her son Md. Hafez Farid Uddin (defendant No.1) and her widowed daughter Anisa Khatoon along with her two sons are living with her; that the affidavit dated 10.12.1994, in which signature of the plaintiff  was obtained, was prepared by the defendant No.1 and got signed by her  taking advantage of her weakness, love and affection to her son, that the said affidavit 10.12.1994 is nothing but a paper transaction and is collusive one; that all the documents that are prepared in the name of the Defendant No.1, pursuant to Mutation Case No.3999/94/95 and Jamabagh Case No.15 of 2005 dated 31.7.2005 are all voidable and that the conduct of the defendant, in procuring those documents, comes within the scope of committing fraud; hence all those documents are liable to be treated as illegal and void; that in order to perpetuate the ill  design to grasp  the entire property the defendant No.1 has subsequently created a register gift deed No.5315, dated 30.12.2004, in favour of his 2(two) sons, namely Md. Zaki Uddin, who are defendant Nos. 2 and 3; that the cause of action for filing the suit has arose on 10.12.1994 when the aforesaid affidavit was created and thereafter on 31.7.2005 when the defendant No.1 got the suit properties mutated in his name pursuant to the Mutation Case No.3999/94-95-Namjari-Jamabagh Case No.15 of 2005 and was claiming exclusive ownership in the suit property by asking the plaintiff and other successors to leave the suit property and, thereafter, in the month of September, 2003, when the plaintiff- petitioner went to Land Development Tax Office to pay Khazna and came to know about procuring  of this affidavit, the mutation khatian, Mohanagor khatian, mutation with the Dhaka City Corporation (DCC) in the name of the defendant No.1, and finally in May 2008, because the defendant No.1, by assuring her that the matter would be  settled amicably, but for finally refusing to settle. The plaintiff has valued the suit at Tk.1000/- and paid fix court fees and prayed for relief to declare the aforesaid affidavit dated 10.12.1994 as void and that all the documents that was prepared pursuant to Namjari and jamabah Case No.15 of 2005 to be declared void. The plaintiff has further prayed that the deed of gift No.5315 dated 30.12.2008, executed by defendant No.1 in favour of his sons defendant Nos. 2 and 3, should also be declared void and she has also prayed for permanent injunction not to disturb her possession in the suit property.

The defendant Nos. 1, 2 and 3 have filed a joint written statement alleging, amongst other that the defendants have contested the suit by filing written statement denying all the material allegations brought against them and contending inter alia;
  1. that the suit is not maintainable in its present form and the suit is barred by law of limitation . The defendants thereafter stated that the disputed house was bought in the name of the successors of Hazi Fayez Uddin. Thereafter the death of Hazi Foyez Uddin, the successors amicably made a partition deed through Notary public wherein the plaintiff got the disputed house along with other peroperty;
  2. that thereafter the plaintiff charmed with natural love and affection gifted the suit land to his son i.e defendant No.1 in front of notary public through registered affidavit deed No.30 dated 30.12.1994. The defendant No.1 therefore got his name mutated through namjari case No.3999/94-95 and enjoyed the suit land by way of tenancy;
  3. that whenever the defendant went to mutate his name in city corporation, the plaintiff was informed the matter through notice and the plaintiff thereafter in front of Kamal Uddin Kabul i.e. Ward Commissioner No.64 issued a No Objection Letter dated on 09.09.1995. Thereafter the defendant No.1 mutated his name and paid rent, tax accordingly;
  4. that therefore, the Dhaka City Survey was recorded in the name of defendant No.1. The plaintiff informed the Deputy Taxes Commissioner, Circle 20 abut the gift and paid the income tax without the disputed house in the income tax statement. The TIN No. of the plaintiff is 051-1000-5218/sa-20. Thereafter the other sons and daughter became aggrieved about the gift and pressurized the plaintiff to file a Misc. Case No.7003 against the namjari and joma bhag case No.3999/94-95. Thereafter the plaintiff understood the conspiracy of her other children withdrew the misc. case voluntarily and thus the Assistant Commissioner (Land confirmed the namjari case No. 3999/94-95;
  5. that thereafter the defendant on 30.12.2004 gifted the suit land to the defendant Nos. 2 and 3 through registered Heba deed NO.5315. Thereafter the defendant Nos. 2 and 3 got their name mutated through Namjari and Joma Bhag Case No.1505 dated 31.07.2005 and paid rent accordingly;
  6. that the plaintiff due to pressure from other children have filed this suit. The defendants claimed that the plaintiff has no prima-facie arguable case and thus they have prayed for dismissal of the suit.
That the learned Senior Assistant Judge, Dohar, Dhaka after hearing both the parties decreed the suit by its judgment and decree dated 01.06.2009 (decree signed on 08.06.2009) in Title Suit No.4007 of 2008.

That against the judgment and decree passed by the trial court the defendant as appellants preferred Title Appeal No.274 of 2009 before the learned District Judge, Dhaka, on transfer the same was herd by the learned Additional District Judge, 6th Court, Dhaka who by its judgment and decree dated 30.05.2010 (decree drawn on 07.06.2010) allowed the appeal and reversed the judgment and decree of the trial court.

That being aggrieved by and dissatisfied with the judgment and decree of the Court of appeal below the plaintiff-petitioner preferred this revisional application under Section 115(1) of the Code of Civil Procedure before this Hon’ble Court Division on the following amongst other.

The petition filed under section 115(1) of the Code of Civil Procedure, being moved as a motion, this court has issued the Rule mentioned above.

The learned Advocate Mr. Mahbubey Alam, appearing alongwith the learned Advocate Mr. Md. Harun-or-Rashid, having placed the petition and the documents lying with the lower court record, first of all submits that the Appellate Court below has utterly failed to the appreciate the evidence on record. It has failed to notice that the plaintiff, being P.W.1, herself appeared before the court and denied to have made any oral gift on 1.11.1994 or to have signed the affidavit dated 10.12.1994. He further submits that P.W.1 has also deposed in her examination and in the course of her cross-examination that she has other children and she had no intention to make any gift in favour of his one son only by excluding other children. The P.W.1 has further deposed that she is possessing the suit property alongwith the residential building. Next, drawing my attention to the certified copy of  a registered partition deed No.2922 dated 20.10.1998, (Ext.8) the learned Advocate for the petitioner submits that, very unfortunately, neither the lower court nor the appellate court has sufficiently discussed this registered partition deed signed in the year 1998 by all heirs of late Faizuddin that clearly proves that no  oral gift was made in the year 1.11.1994 and no question to sign any affidavit, on 10.12.1994,to confirm the oral gift by the petitioner did arise. Then referring to the judgments of the appellate court, the learned Advocate further submits that the appellate court, as the last court of facts, has utterly failed to appreciate that, since a deed of partition was executed and registered in the year 2008, in which the defendant No.2 is also a signatory, there is no need to seek any  relief for cancellation of the affidavit (halfnama) dated 10.12.1994 inasmuch as by virtue of the subsequent deed of  partition, registered in the year 2008, the  affidavit dated 10.12.1994 has become ineffective and non existent in the eye of law. Moreover, this registered deed of partition dated 20.10.2008 also proves that the oral gift, even if there was any, was never acted upon. Besides, he further submits that, the signature in the impugned affidavit in written as……………“কামরুন নেসা” whereas in the “আপত্তিহীন সনদপত্র” it appears as “ কামরান নেসা।” As such, he adds, the  genuineness of the affidavit dated 10.12.1994 has been rightly questioned. He, next, submits that the appellate court ought not to have relied upon the  evidence of the defence witnesses, because the defendant No.1 himself did not appear before this court. Whereas, the other defendants are not neutral witnesses. As such, he continues, the defendants could not prove  their positive case stated in the written statement. As regards the lower court’s finding that the suit was barred by limitation, the learned Advocate for the petitioner submits that in fact the plaintiff has claimed to have learnt about this halfnama in the year  2003, as stated in paragraph No.10 of the plaint, when she went to the Land Development Tax office for the purpose of  payment of Khazna. Thereafter, the defendants, assuring the plaintiff that they would settle the dispute amicably, had dragged the matter and finally refused to settle the matter in May, 2008. So the cause of action has arisen in the year 2008. As such, the suit has been filed  on 10.7.2008, i.e. within the period of 6(six) years limitation from May, 2008. But the learned Appellate Court, without at all taking into notice these material facts and circumstances, has passed the impugned judgment and decree reversing the judgment passed by the trial court, by which the suit was allowed, and thereby the Appellate Court has committed error of law resulting in an error in the decision and that has occasioned failure of justice in this case. Accordingly, he has prayed that the Rule issued in this case may be made absolute.

The learned Advocate Mr. A. F. M. Mesbahuddin, appearing along with the learned Advocate Mr. Md. Zakir Hossain, on the other hand, having placed the petition alongwith the materials on record, for the opposite parties, submits that the appellate court, being the last court of facts, the findings of the appellate court can not be lightly interfered with and it is the trend of  decisions of this court. He further submits that a mere perusal of the trial court judgment would  prima-facie show that the trial court, when the passed the judgment dated 01.06.2009 in Title Suit No.4007 of 2008,  did not discuss any evidence of the P.Ws (the plaintiff’s witnesses) or of the D.Ws(defendant’s witnesses), with specific reference to their deposition or to the documents exhibited in the suit and had arrived at wrong findings regarding the issues framed by the said court. The trial court, in passing it’s judgment and decree, had not applied its mind judiciously to the facts and circumstances of this case, it has utterly failed to appreciate the evidence on record and has failed to arrive at correct findings on the issues framed. On the contrary, he submits, that a plain reading of the judgment passed by the appellate court evidently shows that the learned Judge of the Appellate Court has discussed the deposition of each  witnesses of the plaintiff (P.W) and of each defence witness (D.W.) as well as it has examined all the exhibits meticulously and  judiciously and the judgment passed by the Appellate Court is apparently based on proper appreciation of evidence on record. The appellate court, he continues, has reversed the findings of the trial court upon proper appreciation of the evidence, both oral and documentary, as will be apparent from the materials on record and the judgment and decree of the Appellate is in clear consonance with the provisions of law. Next, referring to the deposition of P.W.2 Hazi Amir Hossain, who is the son in law of the plaintiff, has admitted the fact of making oral partition in 1994. During his cross-examination that “ আমি ব্যাবসা করি। ব্যাবসা প্রতিষ্ঠানের নাম হোসেন ট্রেডাস। হোসেন আমার পুত্র। আগে ব্যাবসাটা আমার শুশুরবাড়ির সাথে Joint ছিল. ১৯৯৪ সালে বন্টন হওয়ার পর পৃথক হই।” He has also admitted that ‘‘ আমার প্রদত্ত হলফ নামায় (প্রদঃ-১০) এবং ১০/০১/১৯৯৪ ইং তারিখের স্বাক্ষর এক হতে পারে|’’ As such,  this P.W.2 admits that there was an oral partition in the year 1994, pursuant to which he has separated  his joint business that was previously being done with his father-in- laws family and he has also  admitted to have made signature on the affidavit dated 10.2.1994, when his attention was drawn, to his admitted signature. The learned advocate also submits that, P.W.3,  Amir Hossain, has straight way  admitted during his cross-examination  that, “১০/১২/১৯৯৪ ইং তারিখের হলফনামার ৩নং স্বাক্ষর আমার| ’’ But, neither the PW.2 nor P.W.3, nor any other PWs, had deposed that the partition of the suit properties was effected by any deed of partition in the year 1988. He also submits P.W.4 , Haji Kamal, a neighbor of the parties and local commissioner, acquainted to  the parties deposed that “ এই অনাপত্তি নামায় আমার স্বাক্ষর আছে, কিন্তু আমি সরল বিশ্বাসে স্বাক্ষর করি। ”.As such this P.W 4 has also admitted that he had put his signature on a document “ আপত্তিহীন সনদপত্র।” On 09.09.1995 signed by the plaintiff for the purpose of mutation of the suit property  in the name of defendant No.1 by striking out her name. This P.W.4 did not refer exclusively to the request made by the defendant No.1., but the asserts that the request was made by the family members of the plaintiff.  As such, he submits that, evidently the fact of swearing and signing the affidavit on 12.12.1994 by the plaintiff/ P.W. 1, recording the oral gift made on 1.11.1994, has been proved by P.W.3 in clear language and P.W. 2 has admitted that his admitted signature (exhibit-10/1) has similarly with the signature appearing in the affidavit dated 10.12.1994  (exhibit-Kha). Both these P.W.2, nor the P.W.3 are witnesses to the affidavit dated 10.12.94, while another witness named Muhammad Ahammad Khan was  not alive at the time of hearing of the suit. Next referring to the deposition of  P.W.5 Md. Nasiruddin, son of the plaintiff/P.W.1, he submits that, in his deposition P.W.5 has simply states that the suit property was purchased by his father in the name of his mother i.e. in the benami of her mother. After death of his father the suit property, including other properties, was partitioned amongst his mother and the brothers and sisters. In paragraph No.3 of the plaint, it has been stated that husband of the plaintiff, died in the year 1992. As such, as per deposition of P.W.5, the suit property and other properties left by his deceased father was partitioned amongst the family members after death of his father i.e. some time after 16.12.1982. This P.W.5 also does not state that the property was partitioned by any registered deed in the year 1998, although he himself is a signatory to that deed. P.W.6, Anisa Khatoon, is daughter of the plaintiff/ P.W. She is an widow and deposed that she  in stays a flat on the suit land alongwith her two sons,  and she has deposed in examination chief, regarding the oral gift, that “আমার মা কখনই এই বিষয়ে আমার সাথে আলোচনা করে নাই। ” As such, the deposition of this P.W also does not in any way support the case of the plaintiff- petitioner, the learned Advocate submits. On the contrary, the defence case has been consistently supported by all the defence witnesses i.e. by D.W.1 to D.W.5, as has been elaborately discussed in the judgment passed by the appellate court, as the last court of  facts. The defendant No.1 did not appear in this case for obvious reason, he explains, that this is a suit between the mother and son and there was reason for feeling embarrassment by the defendant No.1 to personally appear in this case. This does not in any way cast any doubt to the deposition made by the defence witnesses or on the defence case, inasmuch as the defence witness, as a whole, is consistent, elaborate and there is no contradiction amongst their deposition. The learned Appellate Court has, therefore, he concludes, has recorded   his findings on facts based on deposition of these witnesses and on law. The trial court has failed to appreciate that the suit was barred by limitation and that the suit was not maintainable for not seeking cancellation of the impugned deeds and the appellate court has, therefore, rightly reversed the findings of the court below on point of facts and law. As such, the findings of the appellate court does not suffer from any perversity or misreading or non-reading of evidence or misconstruction of law and the same does not call for any interference by this court. Hence he has prayed for discharging the rule.

Heard the learned Advocates, perused the petition alongwith the judgments of the courts below and have examined the evidence and other materials on record.

The issue before this court is to consider whether the appellate court has committed any error law resulting in any error in the decision occasioning failure of justice in passing the impugned  judgment and order dated 30.5.2010 (decree signed on 7.6.2010) in Title Appeal No.274 of 2009.  
 
To arrive at the conclusion, I have taken for consideration the judgment passed by the appellate court.

In it’s judgment the appellate court has framed the following issues, namely (1) whether the judgment and decree passed by the learned court below is liable to be reversed and set aside and (ii) whether the appellant (plaintiff) is entitled to get the relief as prayed for.

To arrive at my findings on the said issues, I have taken for considering the judgment dated 30.5.2010, of the appellate court, for consideration. I find that  under the heading ‘‘ আলোচনা ও wm×vš—ÕÕ the appellate court has recorded that admittedly Kamran Nessa, the plaintiff, was owner of the suit property. The suit has been brought for declaring void the affidavit  dated 10.12.1994. The trial court by its judgment and order dated 10.12.1994 has declared the said affidavit dated 10.12.1994 void and not binding on the plaintiff. Hence the defendant-appellant has filed this appeal against the said judgment stating 7 grounds in the Appeal Memo, for setting aside   the said judgment. In the appeal memo, the appellant has stated that there is no cause of action for filing the suit for the reason, that no specific date of acquiring knowledge about the impugned affidavit has been mentioned in the plaintiff and that the trial court has erred in passing the judgment and order because of misconception on the issues involved and has also failed to appreciate that the suit was barred by limitation and on the principle of estoppeal. It has also been stated that in the Appeal Memo that from the return of income tax and the documents relating to the mutation it was further apparent that the plaintiff  Kamran Nessa has gifted the suit property in favour of her son  defendant No.1, and that the suit property was not shown in the  income tax return filed related to their joint property, after the oral gift was made. Mutation has been done and mutation khatian has been recorded in favour of the defendant No.1 pursuant to the said oral gift made in the year 1994. In Mahanagar jarip (Mahanagar survey) name of the plaintiff has been duly recorded as possessor and owner of the suit property.

Thereafter, I also do find that the appellate court has discussed the evidence of the prosecution witnesses of the plaintiff  and records that inspite of the  P.W.2 and 3 having supported the affidavit and the P.W.4 having supported the  title and possession of the defendant in the suit property,  the lower court has failed to appreciate their evidence and arrived at findings contrary to the evidences on record. The plaintiff Kamran Nessa, as P.W.1, has admitted to have signed the affidavit and helped in getting  mutation of the suit property in the name of the defendant No.1. She did not raise any objection in recording this suit property in the name of the donee in the income tax return of defendant No.1. The  P.W.4 deposed to have assisted to get mutation of suit property in the name of defendant No.1, with consent of all parties. The defendant No.1 subsequently gifted the suit property in favour of defendant Nos. 2 and 3. But, even after knowing about this registered gift deed the plaintiff has simply filed  a suit for declaration instead of filling a suit for cancellation of the registered deed of gift made by the defendant No.1 infavour of the defendants No.2 and No.3. As such, the suit is not maintainable in its present form. Next, referring to the cores-examination of defendant No.1, the learned appellate court records that, from the evidence on record, it appears that the defendants are maintaining title and possession in the suit property. The P.W.2 has indirectly admitted  in his cross-examination that on  10.12.1994 he had  signed in the affidavit as a witness and that the defendant No.1 is in possession of the suit property. P.W.3, in his cross-examination, has admitted that he has signed below the affidavit dated 10.12.1994 as a witness and that defendant No.1 is living in the suit property. P.W.4, Haji Kamaluddin, Commissioner, in his deposition, stated that he has signed the ‘no objection certificate’. The D.W.2 deposed that the suit property was gifted  by the defendant Nos.1 to his two sons and that  the defendants are in possession of the suit property through their tenants.  D.W.3, Anwar Hossain, deposed    that Kamran Nessa was owner  of the suit property and subsequently, in the year 1994, she has gifted the suit land to his son (defendant No.1). The D.W.4,  in his deposition, has also stated that the defendants are in possession of the suit land through their tenants. The D.W.5, Caretaker of the suit property, in his deposition,  stated that from  1988 to 1994 he was serving as an employee of Kamranness and that in 1994 the property was gifted by  her to her son (defendant No.1), and that he (D.W.5) is   serving   as an employee of defendant No.1 since 1994.

Accordingly, the appellate court, as apparent in it’s judgment, having considered the deposition of the witnesses, has arrived at independent findings that the defendants are maintaining their title and possession in the suit property by duly getting their name mutated in respect of the suit property and on payment of land development taxes (Khajna) and income taxes etc. Appellate court has also recorded in it’s judgment that before the trial court the plaintiff has not mentioned any specific date on which she has come to know about the affidavit dated 10.12.1994, but she has filed the suit on 10.7.2008. As such the suit was clearly barred by limitation, but the trial court has not given proper decision on that issue. On the issue of estoppel, the appellate court holds that inspite of the plaintiff having complied with all formalities pursuant to the oral gift and the witnesses to the affidavit, who are alive, having deposed that the defendant is in possession of the suit property through his tenants, therefore, the suit was not maintainable without prayer for decree for  cancellation of the gift deed, as per provision of section 39 of the Special Relief Act, 1877, and for recovery of khas possession, but the trial court has failed to appreciate this. He also holds that in this case advolerume court fees ought to have been paid on proper valuation of the suit. The learned trial court, he records, have found that  offer and acceptance in respect of the gift was in favour of the defendant and has also recorded that the defendant was in possession of the suit land before 10.12.1994. Then referring  to the power of attorney (Ext. Ka) to the affidavit recording  oral gift (Ext. Kha), to Ext. Ga series, namely the DCR and land development taxes receipts, to Ext. Gha khatians (record of rights),  to  Ext. ‘Uma’- certified copy of the objection Miscellaneous Case No.70 of 2003 filed before the Assistant Commissioner  (Land), Dhanmondi Revenue Circle, to (Ext. Cha)-land development tax receipts etc, the appellate court has arrived at the finding that the suit property is in  possession of the defendant and that they are maintaining possession on payment of taxes and Khazna in respect of the suit properties. Referring to (Ext.8), a register deed of partition of 2008, the learned appellate court records that it appears from Ext. 8 that there were a huge properties left by deceased husband of the plaintiff and that have been partitioned long back amongst the successors of the deceased Faizuddin .  He also holds that  since the suit property was transferred to the defendant No.1 through gift and plaintiff herself has assisted in doing the necessary formalities pursuant to the gift, as recorded in affidavit dated 10.12.1994, it is admitted by both sides that the gist was made and the  oral  gift was recorded long before 2008 and the defendant was recovering rents from the tenants residing/using the suit properties. But, the learned Court below, without discussing the evidences of the witnesses in detail or specifically, has declared void the affidavit dated 10.12.1994, although the defendant has been able to prove their case. Accordingly, he has allowed the   appeal against the contesting respondents, without any order as to cost and has reverse  set-aside the judgment and order dated 01.06.2009, passed by the court below (the decree signed on 8.6.2009).

In the light of the findings of the appellate court, I have considered the judgment and decree passed by the trial court. I find that the learned trial court, in arriving at her findings, had neither specifically referred to, nor had discussed, in it’s judgment,  the evidence of the plaintiff’s witnesses (P.Ws) or of the defendant’s witnesses (D.Ws) or to the documents proved in the course of trial. Whereas, I find that, the appellate court has, in his judgment, specifically referred to and discussed the entire deposition on record as well as the documentary evidence, marked  as exhibits, in arriving at his findings  on the  issues of law and of facts, and has passed the judgment based upon the independent findings arrived at by him and upon proper appreciation of the evidence on record.

The trend of decisions of this court, as the learned advocate for the opposite-parties submits, is that the appellate court, being the last court of facts, the findings of the appellate court should not be lightly interfered with. The appellate court, I find that, has reversed the findings of the trial court upon proper appreciation of the evidence, both oral and documentary, as will be apparent from the materials on record. I also find that the judgment  of the Appellate Court is in clear consonance with the provisions of law.  Next, having examined the deposition of the witnesses and the documents exhibited, I find that P.W.2, Hazi Amir Hossain, who is the son in law of the plaintiff, has admitted the fact of making oral partition in 1994. During his cross-examination he admits that “ আমি ব্যাবসা করি। ব্যাবসা প্রতিষ্ঠানের নাম হোসেন ট্রেডাস। হোসেন আমার পুত্র। আগে ব্যাবসাটা আমার শুশুরবাড়ির সাথে joint ছিল। ১৯৯৪ সালে বন্টন হওয়ার পর পৃথক হই” He has also admitted that ‘‘ আমার প্রদত্ত হলফ নামায় (প্রদঃ-১০) এবং ১০/০১/১৯৯৪ ইং তারিখের স্বাক্ষর এক হতে পারে। ’’As such,  this P.W.2 admits that there was an oral partition in the year 1994 pursuant to which he has separated  his joint business that was earlier done jointly with his father-in- laws family and he has also  admitted to have made signature on the affidavit dated 10.2.1994, when his attention was drawn, to his admitted signature. This P.W.2 is one of the 3 witnesses to the affidavit dated 10.2.1994 (exhibit-Kha). The P.W.3,  Amir Hossain, has straight way  admitted during his cross-examination  that, “১০/১২/১৯৯৪ ইং তারিখের হলফনামার ৩নং স্বাক্ষর আমার|’’  Neither this PW.2, nor the P.W.3 nor any other PWs had deposed that the oral partition of 1993, as recorded in the notorised affidavit dated 10.11.1993, recording the oral partition, was not acted upon or that the  partition of the suit properties was effected by any deed of partition in the year 1988. I also find that the P.W.4 , Haji Kamal,, a neighbor of the parties and local commissioner, acquainted to  the parties, deposed that “এই অনাপত্তি নামায় আমার স্বাক্ষর আছে, কিন্তু আমি সরল বিশ্বাসে স্বাক্ষর করি| ”.As such this P.W 4.has also admitted that he had put his signature on a document “আপত্তিহীন সনদপত্র” on 09.09.1995, that had been signed by the plaintiff for the purpose of mutation of the suit property  in the name of defendant No.1 by striking out her name and this admission also proves the oral gift made in the meantime, in 1994. This P.W.4 did not refer exclusively to the request made by the defendant No.1, but he asserts that the request was made by the family members of the plaintiff.  As such,  I find that  the fact of swearing and signing the affidavit on 12.12.1994 by the plaintiff/ P.W. 1, recording the oral gift made on 1.11.1994, has been proved by P.W.3, in clear language, in his deposition and also the P.W. 2 has admitted, in his deposition, that his admitted signature (exhibit-10/1) has similarity with his signature appearing in the affidavit dated 10.12.1994  (exhibit-Kha). Both these P.W.2 and the P.W.3 are witnesses to the affidavit dated 10.12.94, while another witness named Muhammad Ahammad Khan was  not alive at the time of hearing of the suit. Next, referring to the deposition of P.W.5 Md. Nasiruddin, son of the plaintiff/P.W.1, I find that, in his deposition P.W.5 has simply stated that the suit property was purchased by his father in the name of his mother i.e. in the benami of her mother. After death of his father the suit property, including other properties, was partitioned amongst the heirs of the deceased Faizuddin late husband of the plaintiff. In paragraph No.3 of the plaint, it has been stated that husband of the plaintiff, died in the year 1992. As such, according to the deposition of P.W.5, the suit property and other properties left by his deceased father was partitioned amongst the family members after death of his father i.e. some time after 16.12.1982. This P.W.5 also does not state that the property was partitioned by any registered deed in the year 1998, although he himself is a signatory to that deed. The P.W.6, Anisa Khatoon, daughter of the plaintiff, simply deposed, in examination chief, regarding the oral gift, that “আমার মা কখনই এই বিষয়ে আমার সাথে আলোচনা করে নাই। ” Therefore, the deposition of this P.W also does not in any way support the case of the plaintiff- petitioner. I find, on the contrary, the defence case has been consistently supported by all the defence witnesses i.e. by D.W.1 to D.W.5, as has been elaborately discussed in the judgment passed by the appellate court, as the last court of facts. I also find substance in the submission of the learned advocate for the opposite parties that,non-appearance of the defendant No.1  does not in any way cast any doubt to the deposition made by the defence version, or on the defence case, inasmuch as the defence witness, as a whole is consistant, elaborate and there is no contradiction amongst their deposition.

I have also taken into notice that, the D.W.1, Md. Zakir Uddin, has elaborately and specifically stated the defence case and proved the case of defendant No.1. He has proved the affidavit dated 10.12.94, the DCR and all documents relating to mutation, khatians, khajna Dhakilas in the name of the defendant No.1. as well as the mutation with the DCC, the orders dated 30.9.2003 to 09.2.2003 of the A.C (Land), Dhanmondi Revenue Circle, Dhaka, whereby the Misc. Case No.70 of 2003 initiated by the plaintiff, challenging the mutation, was withdrawn, the documents relating to mutation in the name of defendants No.2 and 3 and the Khajna Dhakila, pursuant to the gift made in their favour by defendant No1, by proving the original gift deed No.5315 dated 30.12.2004. All these documents are marked as exhibits ‘Ka’ to exhibit ‘Cha’ series and the documents exhibited on behalf of the plaintiff are marked exhibits No.1 to 11. Next, having considered the deposition of the  D.W No.2, Jalilur Rahman, and 3.Md. Selim, two  neutral  witnesses, I find they have deposed that the defendants are owners of the suit properties  and  they possess the same through their tenants. D.W. 3 is also a neighbor and living in the next door to the disputed property. The D.W.3 deposed that the plaintiff was the owner and in the year 1994 and  she had gifted the property to defendant No.1, and that the defendants are occupying and possessing the suit land along with the residential buildings through their tenants. He further deposed, in his cross-examination, that his age was about 22 years in the year 1994 when the gift was made. Nothing adverse or to  contradict these witnesses could be extracted from during their cross-examination. The D.W.4, Shamim Ahmed, is living to the north side of the disputed property. He has deposed that the suit land alongwith the residential property is in possession of the defendants and they are occupying the same through their tenants.  The D.W.5, Md. Rafiqul Islam, is the caretaker of the residential building. He, I find, is also a neutral and non-partisan witness. In his deposition he stated that the suit property earlier belonged to the plaintiff and he was serving under the plaintiff until 1994. In the year 1994 the property was gifted to the defendant No.1 and since then he is serving under defendant No.1. In his cross-examina-tion, he deposed that, since 1991 he is staying at Muradpur alongwith his family. His salary, while was serving under Kamrun Nessa, was Tk.4,000/-. His duty was to pay various utility bills. He is recently receiving Tk.5,000/- as the monthly wages. He also deposed in his cross examination that “ কামরুন নেসা ১৯৯৪ ইং সালে ১নং বিবাদীকে দান করে, তবে তারিখ মনে নাই। ঐ সময় খাজে দেওয়ান এর নিচ তলায় ছিলাম।” The D.W.2 to D.W 5 also deposed that they have received summons at their respective places and they have come to the court independently and they have not brought before this court by any parties to the suit. The have in a voice, corroborated the D.W.1 in all respect, regarding the oral gift, ownership and possession of the suit properties, as neighbours and inmates/ employee, respectively. They have personal knowledge and there is nothing on record  to  disbelieve them or to discard their deposition. I have also considered the application filed before the Assistant Commissioner of  Land  by the  plaintiff and   the orders dated 30.9.2003 to 09.12.2003, recorded in the Objection Miscellaneous  case No.70 of 2003, that was filed   by the plaintiff-petitioner in the year 2003, it as recorded by the  Assistant Commissioner in his order dated 19.12.2013 (exhibit- ‘Uma’ series). Presumption of legality is attached to these official acts as per provision of Evidence Act. Accordingly, I hold that the period of limitation, has started from the 1994 since the partition was made in the year, 1994, as admitted by the P.W.1 in ‘Uma series, and by the P.W.3 and D.W.5, whose deposition can be safely relied upon. Even if  the plaintiff’s case that she came to  know about this gift in the year 2003 were acceptable, as stated in paragraph No.10 of the plaint, then also the period of limitation starts from 2003 and a suit for cancellation of the deed of gift, as per section 39 of the S.R.Act  ought to have been filed   within 3 years from 2003,  as required by section 91 of the Limitation Act. For this reason alone,  the suit is hopelessly the barred by limitation. Besides, the submission of the learned advocate of the plaintiff-petitioner that her signature appears as “কামরুন নেসা ” in the affidavit dated 10.12.1994 (exhibit-Kha), but her signatures in the “আপত্তিহীন সনদপত্র” appears as “কামরান নেসা ”  does not have any substance. Because, the plaintiff herself admits to have signed the said affidavit and, 2ndly, she has signed below her deposition, as P.W.1, as “কামরান নেসা ”

To summarise, I record that,  by P.W.4, Md. Kamaluddin admitted his  making  recommendation alongwith signature on 9.9.1995  on a no objection certificate, wherein the plaintiff Kamrunnessa has stated that she has no objection if the suit properties are recorded in the name of his son Hafez Md. Sharif Uddin (defendant No.1),  in the place of  her name in respect of the suit properties. This no objection certificate, bearing signature of P.W.4 with his recommendation made on 9.9.1995, ought to have been marked as exhibit, as admitted by him in his deposition before the trial court. As to the registered deed of partition No.2922 dated 20.10.1998 (Ext-8), I  find that  the P.W.3 (witness to the affidavit) has clearly  deposed that he has signed the affidavit dated 10.12.194 as one of the wtnessess. The P.W.2, another witness to the affidavit, has also admitted that his signature made on the affidavit dated 10.12.1994 is similar to his admitted signature (exhibit-10/1). I also find that in an unregistered partition deed dated 10.11.1993 i.e. “আপোষ বন্টননামা দলিল ।” The fact of oral partition, amongst all the heirs of deceased Faizuddin, has been put into record. This aposhbantannama deed, containing schedule ‘Ka’ to ‘Cha’ has been signed by all  heirs of the late alhaj Faizuddin, and their signatures have been duly verified and authenticated by a Notary Public on the same date of execution. This notarized deed of partition is a   memorandum showing that  an oral partition was made after death of Faizuddin on 16.12.1982, as admitted by  P.W.5 (son of late Faizuddin) deposing  that the property was partitioned after the death of his father. This has been admitted by P.W.1 in her deposition, admitting that, “আমার স্বামী ১৯৮২ সনে ১৬ ডিসেমবর চার ছেলে ৩ মেয়েকে ওয়ারিশ রেখে মারা যান। ১৯৯৩ সনে আমাদের নঁংরহবংং ও সম্পত্তির ব্যাপারে বাড়িতে উকিল এনে বন্টন করায়। বন্টন নামার মূল কপি আদালতে দাখিল করিলাম (প্রদ-৭)|” All defence witness have also gave deposition that the suit property was gifted in 1994, i.e. after oral partition was made, as recorded in the notarised deed of partition of 1993 (exhibit-7). The registered partition deed No.2922 of 2008, though admitted in evidence and marked as Ext. 8,  also refers to  the same  schedules and contents of the previous notorised deed of partition dated 10.11.1993, signed by and between the same parties,  in the year 1993 and it simply confirms the previous oral partition of 1993. I am also of the view that the materials on record are adequate to dispose of this matter.

The subsequent registered partition deed No.2922 dated 20.10.1998 can not, in my considered opinion, nullify the previous oral partition recorded in the notorised partition deed dated 10.11.1993, submitted by the plaintiff and proved by P.W.1, marked as exhibit-7 that was permitted by law and has the legal force and was acted upon  amongst the parties, as admitted by the PW-1, in her examination-in-chief, deposing that, “আমার স্বামী ১৯৮২ সনে ১৬ ডিসেমবর চার ছেলে ৩ মেয়েকে ওয়ারিশ রেখে মারা যান। ১৯৯৩ সনে আমাদের নঁংরহবংং ও সম্পত্তির ব্যাপারে বাড়িতে উকিল এনে বন্টন করায়। বন্টন নামার মূল কপি আদালতে দাখিল করিলাম (প্রদ-৭)।”. I am also of the view that the registered partition deed No.2922 dated 20.10.1998 is nothing but a memorandum of the previous oral partition, recorded in the notarized deed of partition of the year 2003 and admitted by P.W.1 in her deposition, based on which the suit property fell into the shaham (share) of the plaintiff and she had made the oral gift of 1994. This registered partition deed of 1998, therefore, has neither created nor extinguished the right of the parties in the properties that was partitioned in year 1993. Besides, in the plaint, the plaintiff herself also did not rely on this subsequent deed of partition dated 20.10.1998 (exhibit-8) in support of her title or claim to the suit property.  Rather, in her deposition, she claims title to the suit property, based on partition of 1993. Before partition of 1993, the plaintiff claimed title on the basis of a  deed No.314 registered on 18.1.1972 (exhibit-4), as stated in paragraph No.2 of the plaint. None of the parties, I find, has claimed title to the suit or other properties of the deceased Faizuddin on the basis of this deed of partition registered in 2008 (exhibit-8). Next, having considered the affidavit dated 10.12.1994 (exhibit-Kha), in which the oral gift dated 1.11.1994 has been recorded, I find that it has been proved by P.W.3 who is a witness to the affidavit and has also admitted the fact of oral partition taking place in the year 1994, followed by consequent  partition of the joint family business as well. Similarly, P.W.2, another witness to the affidavit dated 10.12.94 has also admitted his signature in this affidavit, by admitting similarity of his signature put an this affidavit dated 10.12.1994, with that of his admitted signature (exhibit-10/1). Besides this affidavit dated 10.12.1994 (Ext.Kha) has been attested on the same date on which it was executed by the plaintiff. As such the attestation itself is a proof of execution of the affidavit by the plaintiff. Moreover, the plaintiff herself has admitted in the plaint more then once, that she has signed the affidavit dated 10.12.1994 although she states that she did not know about the contents of this affidavit. But, she however admits that she has signed it out of love and affection to her son (defendant No.1) and that she signed because she was told that her signature was required for the purpose of business. But the contention she signed this deed for the purpose of business is not supported or corroborated by any witnesses or any other materials on record. On the other hand, the learned Advocate for the petitioner submits that the petitioner no business at all and the question of signing the affidavit for the purpose of business does not arise. I find substance in his submission.

The learned Advocate for the petitioner, Mr. Mahbubey Alam, lastly submitted that if the suit is dismissed on technical point then the equity will be defeated and if the suit is decreed then the defendant No.1 as well as other children/ plaintiff would get their respective title after death of the plaintiff. In this respect, the court’s duty is to consider as to whether the plaintiff  has been able to prove her case by adducing required degree of proof and the submission made by the learned Advocate for the petitioner since not material for the purpose of disposal of this rule.

The learned trial court, though recorded in her judgment that the burden of proof the case of the plaintiff fully lies on him, has, however, failed to appreciate that the plaintiff has not been able to discharge her onus by adducing the required proof or evidence.

However, before parting of, I must hold that in the case of gift made between the family members, there is always a legitimate expectation from the side of the doner, as distinct from a condition or consideration for the gift, that the doner shall reside in the gifted (residential) property with the donee, as a family member. The donee is estopped to deny such legistimate expectation implicit in this kind of gift made for no consideration, but out of love, affection and concern about the welfare of the donee. Such, proposition is supported by the doctrine of ‘legitimate expectation’, application of which can be extended to secure ends of justice, in a case like this.

For the same reason, I further hold that handing over of possession of a gifted property, gift being made between blood relations, like parent and children, does not and should not require physical evacuation of the doner or physically giving up possession of the gifted property by the doner. Handing over of possession, in such a case, can be proved by evidence like the mutation of name of the donee, opening Khatian in his name, payments of Khajna/ tax etc. by him, as has been done in this case. Because, in case of such a gift, made out of love, care and concern between the parties, a legitimate expection to live jointly, as family members, is supported by long prevailing custom of our society. Therefore, husband can not be expected to live separately from wife or the parents from the children or vice versa, in consequence of such type of gift.

Accordingly, I also hold that, it is legistimate expectation of the donor to reside with the donee based on their peculiar relationship as mother and son. The doner, in such case, shall be deemed to have acquired the status of licensee to reside in the suit property. Therefore, for ends of justice, the defendants Nos.1, 2 and 3 are hereby directed to maintain status quo in respect of peaceful living of the plaintiff and of her attendants, if any, in the suit property (in the ground floor, or at any other floor to be determined by the donee), during her life time. In the facts of this case, the plaintiff is estopped, it is to be confirmed as well, to deny the title and possession of the defendants in the suit of properties and she has no legal right to let out or to transfer or to enjoy the usufruct of the suit property.

It is also to be recorded here, as to the binding character of this view, that this court, as a Constitutional Court, not only decides the lis, but also develops and declares the law, as one of its fundamental functions. This court is authorized, by Article 111 of the Constitution, to declare the law and the law declared by it is binding on all courts subordinate to it. It has been held, in the case reported in 32 BLD (AD) 2012: GOB v. Md. Mosharraf Hossain, at page 67, that “the moment High Court Division passes any judgment and order, it becomes law of the land in view of Article 111 of the Constitution, unless the same is modified or set-aside or operation of the same is stayed by the Appellate Division.” Again, in the case of Azzad Hossain v. State, reported in 62 DLR(AD) 288, page 288, at it has been held by the apex court that, any judgment passed by the High Court Division is binding on all and the sub-ordinate courts are duty bound to comply with such judgment.

In view of the deliberation recorded above, I am of the considered view that the findings arrived at by the appellate court, as the last court of facts, does not suffer from any perversity and that there is no misreading or misconstruction of any evidence, documentary or oral or of the provisions of law. He has, as supported by the materials on record, rightly reversed the findings of the trial court on the basis of the independent findings arrived at by him on proper appreciation of the evidence on record and reversed the judgment and decree passed by the trial court and thereby he has committed no error of law  resulting in any error in the decision  or occasioning failure of justice.

For the reasons aforesaid, I find no merit in this Rule. In the result this rule is liable to be discharged.

         In view of the deliberation recorded above and the directions given, the rule is discharged without any order as to costs.
                                   
        Ed.