Case No: F.A. No. 27 of 2012
Judge: Soumendra Sarker. J.
Court: High Court Division,
Advocate: Mr. Sawpan Kumar Mitra, Mr. Mohammad Abdul Khaleque,
Citation: 2017 (2) LNJ 106
Case Year: 2016
Appellant: Most. Monowara Begum and another
Respondent: Rupban Bibi
Subject: Transfer of Property
Delivery Date: 2017-09-18
HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
Soumendra Sarker, J
Md. Ashraful Kamal, J
Most. Monowara Begum and another
…. Plaintiff -Respondent.
Words and Phrases
It is a fact that; this case is governed by the principle of Mahomedan Law and in Mahomedan Law a hiba-bil-iwaj as distinguished from a hiba or simple gift, is a gift for a consideration and two conditions, however must concur to make the instrument valid which are : (1) actual payment of the consideration (iwaj) on the part of the donee, and (2) a bonafide intention on the part of the donor to divest himself in praesenti of the property and to confer it upon the donee. In banking upon such instrument one is to prove the required formalities in connection with the transaction and if it is proved by tangible evidence, in that case only; it can be held, that the instrument is valid in the eye of law. Where there has been no payment of the iwaz, the document cannot be a hiba-bil-iwaj and invalid in the eye of law. Onus of proof that the formalities in connection with the transaction were compiled with lies upon that individual who uphold the transaction. ...(23 and 24)
Transfer of Property Act (IV of 1882)
The factual aspects of the case has cast a reasonable doubt in believing the genuity of the instrument vis. hiba-bil-iwaj. All the material circumstantial evidence have been properly evaluated by the learned trial Judge during deciding the matter of adjudication of the suit as to the fraud practice in getting the instrument registered. The impugned Judgment and decree is upheld. All these material circumstantial evidences has been properly evaluated by the learned trial Judge during deciding the matter of adjudication of the suit as to the fraud practice in getting the instrument registered. The factual aspects of the case has cast a reasonable doubt in believing the genuinity of the instrument viz. the hiba-bil-iwaj. It transpires from the record that the suit property is the paternal homestead property of the donor Rupban Bibi within the heart of Madaripur town. Be that as it may; it is quite natural that the sons and daughters of the donor have any idea or acquaintance about the intention of the donor prior to the said instrument in favour of the donee. ... (25 to 27 and 31)
Mr. Swapan Kumar Mitra, Advocate
. . . For the Appellants
Mr. Mohammad Abdul Khaleque, Advocate
. . . For the Respondent.
Soumendra Sarker, J: This appeal is directed at the instance of the defendant-appellants against the judgment and decree dated 13.10.2011 and 14.11.2011 respectively passed by the learned Joint District Judge, 1st Court, Madaripur, in Title Suit No.131 of 2010 decreeing the suit on contest.
2. The facts relevant for disposal of the appeal in a nut shell can be stated thus the suit property described in schedule ‘ka’ of the plaint originally belonged to the plaintiff who is an old illiterate village woman and she inherited the property from her predecessor-in-interest. The defendant No.1 happens to be her brother’s daughter and the defendant No.2 is the husband of the defendant No.4. The further case of the plaintiff is such that on 10th Agrahayon of 1416 B.S. the plaintiff-respondent went to the residence of the defendant-appellants but on 12th Agrahayon, suddenly; she felt ill due to her old age and taking advantage of her ailing condition the defendants stating about her treatment from doctor brought her in an unknown place and they told before her that her left thumb impressions are required in some papers for the treatment and thereafter the defendant No.2 bringing two unknown persons with some papers obtained some LTIs of the plaintiff on good faith the plaintiff gave her LTIs on the said papers. Subsequent to that; the defendants after taking some medicine for the plaintiff returned to their residence with the plaintiff. That 2/3 days after the said occurrence the plaintiff becoming physically fit returned to her own homestead. It is the case of the plaintiff-respondent that the defendants No.1 and 2 on the middle of Agrahayon, 1416 B.S. disclosed before the plaintiff about the disputed hiba-bil-iwaz deed in respect of the suit property and hearing about that deed the plaintiff became utter surprised and on 08.12.2009 obtaining certified copies of that disputed hiba-bil-iwaz deed finally came to learn about the deed in question. The plaintiff alleged in her plaint that in fact; she did not execute and register any such hiba-bil-iwaz in favour of the defendants and there was no payment of consideration in the way of exchange of ‘jainamaj’ or ‘tasbih’ and the defendants out of ill-motive to grab the suit property which is a homestead property of the plaintiff have created this forged hiba-bil-iwaz which is liable to be cancelled and as a result of that, the plaintiff stating the aforesaid facts instituted the original Title Suit being No.131 of 2010 for a declaration that the disputed hiba-bil-iwaz deed being No.5351 dated 26.11.2009 is forged, collusive, illegal and not binding upon the plaintiff.
3. As against the aforesaid pleadings of the plaintiff-respondent the contrary case of the defendant-appellants in short is thus that there was no collusion or suppression in getting the disputed hiba-bil-iwaz deed registered in favour of them by the plaintiff-respondent, Rupban Bibi; who was the original owner of the suit property described in the schedule of the hiba-bil-iwaz. The further case of the defendants is such that the suit land originally belonged to one Adel Uddin Chowkider who died leaving behind one son Omar Ali Chowkidar and a daughter the plaintiff Rupban Bibi. At the demise of Omar Ali Chowkidar the suit property devolved upon the plaintiff which is a homestead land. The defendant No.1 is the brother’s daughter of the plaintiff, who used to look after the plaintiff and at a stage; the plaintiff being pleased with the defendant No.1 decided to transfer the suit property in favour of the defendant No.1 in exchange of a ‘Jainamaj and Tasbih’ by way of hiba-bil-iwaz deed. Accordingly, on 26.11.2009 the plaintiff-respondent executed and registered the hiba-bil-iwaz in respect of 10 decimals of land and handed over it’s possession in favour of the ‘donee’ the defendant No.1. The defendant No.1 after obtaining the suit property use to reside therein and possess the same. The further case of the defendant-appellants is such that the plaintiff out of ill-motive suppressing the facts on the basis of false allegations instituted the original suit which is liable to be dismissed.
4. The learned trial judge during trial of the original suit after examining three witnesses from the side of the plaintiff and four witnesses from the side of the defendants decreed the suit on contest by the impugned judgment and decree dated 13.10.2011.
5. Being aggrieved by and dissatisfied with the impugned judgment and decree the defendant-appellants have preferred this appeal to set aside the impugned judgment and decree.
6. During hearing of this Appeal Mr. Swapan Kumar Mitra, the learned Advocate appeared on behalf of the appellants while Mr. Mohammad Abdul Khaleque the learned Advocate appeared on behalf of the respondent.
7. The learned Advocate appearing on behalf of the appellants submits that the learned trial court during passing the impugned judgment and decree committed illegality and the judgment and decree passed by the learned trial Judge is contrary to the pleadings of the respective parties and evidence on record which is liable to be set aside. The learned Advocate further submits that the impugned judgment and decree is passed on surmise and conjecture and the learned Joint District Judge, Madaripur failed to appreciate the case of the respective parties and as such came to an erroneous findings and decreed the suit. The learned Advocate also submits that the findings and decisions of the learned trial Judge are bad-in-law which is not consistent with the evidence on record and in fact; the plaintiff-respondent is the executant of the disputed hiba-bil-iwaz deed and no fraud was practiced upon her in obtaining the deed registered in favour of the defendant No.1 and the plaintiff being satisfied with the nursing of the defendant No.1 who happens to be her brother’s daughter transferred the suit property measuring 10 decimals of land from eight plots by way of a hiba-bil-iwaz in exchange of ‘Jainamaj and Tasbih’; but the plaintiff at the ill-advice of some interested persons suppressing the facts out of ill-motive on false allegations filed the suit which was not appreciated by the learned trial court. The learned Advocate lastly submits that the plaintiff have challenged the execution and registration of the disputed hiba-bil-iwaz but did not seek any relief under section 39 of the Specific Relief Act for cancellation of the instrument after payment of advolarum court fees and thus the learned trial court acted illegally in decreeing the suit in favour of the plaintiff-respondent which is not sustainable in law.
8. As against the aforesaid submissions, the learned Advocate appearing on behalf of the plaintiff-respondent controverted the arguments advanced from the side of the defendant-appellants and opposing the grounds of the appeal-memo submits that the learned trial court at the time of passing the impugned judgment and decree committed no illegality or irregularity. The learned Advocate further submits that the learned Joint District Judge, 1st Court, Madaripur during passing the impugned judgment and decree rightly assessed the evidence on record in it’s true perspective and appreciated the actual proposition of law in its total approach and thereafter, evaluating the evidence on records arrived at a concrete decision in decreeing the suit on contest. The learned Advocate also submits that in getting the disputed hiba-bil-iwaz executed and registered the defendants practiced fraud upon the plaintiff and in the name of treatment they managed to obtain the LTIs of the plaintiff-respondent in blank papers by which subsequently the disputed hiba-bil-iwaz deed was created. The learned Advocate lastly submits that in the original suit the plaintiff-respondent categorically challenged the disputed instrument and under the direction of the learned court below the plaintiff deposited the advoluram court fees and as such there is no violation or contrary to law in getting the decree as given by the learned trial court.
9. We have considered the submissions of the learned Advocates of both sides and have gone through the impugned judgment and decree passed by the learned Joint District Judge, 1st Court, Madaripur in Title Suit No.131 of 2010 along with the evidence on records and all other connected papers including the case records.
10. On perusal of the case records it transpires that the plaintiff to the suit who is the respondent of this appeal in her pleadings specifically contended that, she had been owning and possessing the disputed homestead property since her predecessor-in-interest and it is an admitted position that the plaintiff acquired the suit property in her exclusive right, title and interest. While owning and possessing the property-in-dispute the plaintiff felt ill and she took treatment at the domain of the defendants; which is also an admitted position and it is in the evidence that the defendant No.1 i.e. the ‘donee’ of the instrument happens to be the brother’s daughter of the plaintiff-respondent. Admittedly; the plaintiff is an old lady who is illiterate and she has five sons and three daughters and that the disputed homestead property is situated within the heart of Madaripur town.
11. In support of the pleadings of the parties both the parties have adduced evidence to substantiate their contention. In addition to that; the defendant-appellants during pendency of the original suit submitted an additional written statement stating that at the demise of Omar Ali Chowkidar his only sister the plaintiff Rupban Bibi become his legal heir and thus Rupban Bibi became the owner of the disputed property. The plaintiff Rupban Bibi very often felt ill due to her old age and the defendant No.1 Most. Monwara Begum used to look after her. It was further mentioned in the said additional written statement that being pleased with the defendant No.1 the plaintiff decided to transfer the suit land in favour of Monwara Begum and finally she made an oral gift in favour of the defendant No.1 in respect of the disputed land including homestead.
12. We have come-across from the evidence on records that the witness No.1 of the plaintiff-respondent is the plaintiff herself who is Rupban Bibi and on the date of her deposition i.e. on 24.01.2011 she was 85 years of age.
13. P.W.1 the plaintiff Rupban Bibi in her testimony testified that she went the residence of the defendant No.1 and all on a sudden she became ill. The defendants brought her before a doctor and keeping her in the residence of an unknown person obtained her LTIs in some blank papers disclosing that the LTIs are required for her treatment. P.W.1 further testifies that on good faith she put her LTIs on the papers brought by the defendants. P.W.1 further testified that the defendant never gave her any ‘jainamaj’ in lieu of the land in dispute. She also stated that she did not handover possession of the disputed property in favour of the donee Monwara and thus the said hiba-bil-iwaz dated 26.11.2009 is a forged and collusive instrument which was obtained by the defendants by practicing fraud upon her (plaintiff). During her cross-examination from the side of the defendants the plaintiff testifies that the disputed property is situated at Samadar area of Lonch Terminal and the defendant No.1 use to reside in a rental house near a graveyard. P.W.1 in a reply to a question from the side of the defendants testified that in the disputed property there exist three dwelling huts. She denied that in the said dwelling huts the defendants Monwara do reside.
14. Witness No. 2 of the plaintiff is one Abdus Salam Hawlader who is a man of 60 years of age who has deposed corroborating the plaintiff and testifies about the possession in the disputed property. In his testimony he testified specifically that the plaintiff do possess the disputed property and he never heard that the plaintiff gifted the property to anybody. He denied the suggestion of the defendants as to their respective case.
15. The last witness of the plaintiff P.W.3 Bazlur Rahman Khadkar is the son of the plaintiff-respondent who in his testimony testifies that her mother Rupban Bibi use to possess the disputed property in which there are dwelling huts and in the said property the defendants have no possession. During cross-examination P.W.3 testified at a stage that the disputed property was his maternal grandfather’s property and his mother inherited the property subsequently. He denied the suggestion of the defendants as to their case.
16. Vis-à-vis; D.W.1 Sohel is an “am-mokter” of the defendants No.1 and 2 as well as son of the defendant-appellants. This witness testified at a stage that the plaintiff becoming ill took treatment and nursing from his mother and being pleased with that the plaintiff in exchange of ‘jainamaj and tasbih’ gifted the suit land in favour of his mother. At the time of execution and registration of the instrument he (P.W.1), his elder brother and one Sayed and Lavlu were present; those who were the attesting witnesses of the deed.
17. During cross-examination D.W.1 admitted that the plaintiff Rupban Bibi had five sons and three daughters and the disputed property is their paternal property. D.W.1 during his reply to a question from the side of the plaintiff as to purchase of stamp papers testified that the stamp papers were purchased by Rupban Bibi, but subsequently he testified that any other man might have purchased the stamps and he cannot say the exact date of stamp purchase and he also cannot say about the source of writing of the deed i.e. on the basis of what papers the scribe wrote the instrument. D.W.1 the son of the defendant-appellants further testified that the suit land consists of an area measuring 10 decimals in eight plots but the doner from one plot i.e. from plot No.4852 delivered possession in favour of the ‘donee’.
18. D.W.2 the deed writer Monwar Hossain testified before the court that on 26.11.2009 he wrote the hiba-bil-iwaz deed in presence of the donor who put her LTIs.
19. During cross-examination this witness expressed his inability to state the names of the persons who were present at the time of execution of the instrument. This D.W.2 deposed that his ‘Assistant’ one Bachchu identified Rupban Bibi and the stamp paper of the instrument was purchased by him (D.W.2) and he obtained the LTIs of the donor Rupban Bibi.
20. D.W.3 Md. Sayed Bokaul during his deposition deposed that in exchange of ‘tasbih and jainamaj’ Rupban Bibi gifted the property through the instrument and the possession was delivered and that instrument was executed on 25.11.2009.
21. During cross-examination D.W.3 further testified that the hiba-bil-iwaz deed was given on 25.11.2009 and on that very date Monwara handed over the ‘jainamaj and tasbih’ in favour of Rupban Bibi.
22. The last witness of the defendants D.W.4 Md. Lavlu Hawlader testified that in exchange of ‘jainamaj and tasbih’ Rupban bibi gifted the property and handed over possession in favour of the ‘donee’ on 25.11.2009. In the last portion of his cross-examination D.W.4 testified that in lieu of ‘jainamaj and tasbih’ the donor handed over possession of the land in favour of the ‘donee’.
23. On meticulous consideration of the evidence on records it transpires to us that the witnesses adduced from the sides of the respective parties tried to establish the case of the parties to the suit. It is a fact that; this case is governed by the principle of Mahomedan Law and in Mahomedan Law a hiba-bil-iwaj as distinguished from a hiba or simple gift, is a gift for a consideration and two conditions, however must concur to make the instrument valid which are : (1) actual payment of the consideration (iwaj) on the part of the donee, and (2) a bonafide intention on the part of the donor to divest himself in praesenti of the property and to confer it upon the donee.
24. In banking upon such instrument one is to prove the required formalities in connection with the transaction and if it is proved by tangible evidence, in that case only; it can be held, that the instrument is valid in the eye of law. Where there has been no payment of the iwaz, the document cannot be a hiba-bil-iwaj and invalid in the eye of law. Onus of proof that the formalities in connection with the transaction were compiled with lies upon that individual who uphold the transaction.
25. In the instant case; from the assessment of evidence on records we find that there are as many as 08 (eight) S.A. plots fromwhere the suit property was gifted as alleged. But the D.W.1 during his testimony testified that, only from one plot the possession was given by the donor and that S.A. plot is 4852. D.W.4 in support of the pleadings of the defendants deposed that in his presence the donor handed over the land to the ‘donee’ Monwara Begum, but it is curious to note that from the disputed deed being No. 5351 dated 26.11.2009 marked as Exhibit-1 and Exhibit-‘ka’ respectively from both the plaintiff and the defendants we find that the S.A. plot No.4852 is not the ‘land’ but is a ‘pond’. Secondly, it transpires from the evidence on records that the plaintiff to the suit during her testimony before the court as P.W.1 specifically contended that she had no intention to transfer the suit property in favour of any body by way of any such gift or hiba-bil-iwaj. This woman who is admittedly an old lady of 85 years of age and an illiterate person most empathetically asserted that she did not receive any consideration from Monwara Begum in the form of ‘jainamaj’ or ‘tasbih’. In fact; in the instant case there is no substantive piece of evidence to prove the exchange of alleged ‘jainamaj’ or ‘tasbih’ by the ‘donee’ in favour of the donor. The witnesses who deposed before the court of law are contradictory with one another in respect of exchange of ‘jainamaj and tasbih’. The most confusing matter is such that the witnesses of the defendants who uphold the transaction deposed about the transaction of 25.11.2009 which is one day prior to the actual date of the disputed document (transaction). More so; as to the purchase of stamp papers D.W.1 the son of the defendants and D.W.2 the scribe of the deed are contradictory with one-another. D.W.2 asserted that he has purchased the stamp, but it is noticed from the instrument (Exhibit-‘kha’) that the stamp paper was purchased by the donor Rupban Bibi. Besides this; it appears from the pleadings of the defendant-appellants that the defendants have brought self-contradictory cases. Inasmuch as; in the initial written statement they have alleged that the document is a registered hiba-bil-iwaj deed dated 26.11.2009, but in their subsequent additional written statement they alleged that their claim stands on an oral gift. Besides this; the deed writer of the instrument D.W.2 testified that he took the LTIs of the donor but we find from the deed marked as Exhibit-‘ka’ that the Assistant of D.W.2 one Bachchu took the LTIs of the donor. This Bachchu also has become the attesting witness and identifier of the donor Rupban Bibi; but it is no where within the four corners of the evidence on record that ‘Bachchu’ in any manner was acquainted or familiar with the donor Rupban Bibi prior to the date of the instrument, rather; we found from the evidence that Rupban Bibi have as many as five sons and three daughters, who are in the dark about the instrument viz. the transfer deed of their mother Rupban Bibi. All these material circumstantial evidences has been properly evaluated by the learned trial Judge during deciding the matter of adjudication of the suit as to the fraud practice in getting the instrument registered.
26. The factual aspects of the case has cast a reasonable doubt in believing the genuinity of the instrument viz. the hiba-bil-iwaj. It transpires from the record that the suit property is the paternal homestead property of the donor Rupban Bibi within the heart of Madaripur town.
27. Be that as it may; it is quite natural that the sons and daughters of the donor have any idea or acquaintance about the intention of the donor prior to the said instrument in favour of the donee.
28. As to the documentary evidences adduced from the sides of the respective parties we have come-across that the papers relating to payment of tax in favour of the Madaripur Municipality and electrically bill payment from the side of the defendant-appellant Monwara Begum go to show that all these payments are after the filing of the present suit which is 07.02.2010. In this context; it has been argued from the side of the learned counsel of the respondent that these papers have been managed subsequently by the defendants in collusion with the concerned officials.
29. Consulting the materials on record it further appears that the learned trial Judge i.e. the Joint District Judge, 1st Court, Madaripur during deciding the issues framed therein rightly assessed the evidence on record in it’s true perspective. It is also evident that; vide order dated 01.08.2010 while it was detected by the learned Judge that the matter of controversy between the parties is encircled within the provision laid down in section 39 of the Specific Relief Act; the learned Judge gave a direction to the plaintiff, and in compliance to that; the plaintiff to the suit have paid the advolarum court fees on the subsequent date i.e. on 22.08.2010.
30. Having regard to the facts, circumstances and discussions referred to above we are constrained to hold such a view that during passing the impugned judgment and decree no such illegality or infirmity is done by the learned trial court; by dint of which it can be held that the appeal have got any merit to succeed.
31. In the result, the appeal is dismissed without any order as to costs. The impugned judgment and decree dated 13.10.2011 and 14.11.2011 respectively passed by the learned Joint District Judge, 1st Court, Madaripur, in Title Suit No.131 of 2010 in decreeing the suit is hereby upheld and confirmed.
Communicate the judgment and order at once and send back the Lower Court’s Record immediately.
F.A. No. 27 of 2012.
(Arising out of F.A.T No.22 of 2012)