Topic: Jafar Ali Khan And Ors. vs Nasimannessa Bibi

Jafar Ali Khan And Ors. vs Nasimannessa Bibi
Calcutta High Court - Equivalent citations: AIR 1937 Cal 500 - date of Judgment: 11 December, 1936

JUDGMENT
1. This appeal has arisen out of a suit brought by the plaintiff respondent in this Court, for a declaration that the Hebanama alleged to have been executed by her in favour of Jafar Ali Khan, defendant 1 in the suit, on 27th January 1929, was fraudulent, invalid and inoperative, and as such was void, and that it might be cancelled. There was a further prayer in the plaint for confirmation of the possession of the plaintiff in respect of the properties described in the schedules to the plaint and covered by the Hebanama dated 27th January 1929. The case stated by the plaintiff in her plaint was that on the morning of the date of her husband's death, defendants 3 and 4 came to the house of her husband and represented that it was necessary for the plaintiff to put her thumb impressions on some blank papers; that the plaintiff was at the time aggrieved at the imminent death of her husband, and she having implicit confidence in defendants 3 and 4, the thumb impressions required to be given by them on blank papers were given at their request. It was the case of the plaintiff that she was once again required by the defendants to put her thumb impressions on some other papers. It was asserted that the plaintiff had not signed any document of the nature disclosed by the document alleged to have been executed by her as the Hebanama in favour of defendant 1, of her own free will. The claim as made in the plaint was resisted by the defendants and written statements were filed by the original defendants 2, 3 and 4. It was the case of the defendants that the plaintiff has executed the Hebanama which was sought to be avoided by her in the suit, understanding the nature and contents of the same. The main allegations made in the plaint in support of the plaintiff's case were denied. On the pleadings of the parties the issues raised for determination in the case on the merits were Issues 4 and 6:

Issue (4): Was the deed of gift mentioned in the plaint fraudulent and taken under misrepresentation and undue influence as stated in the plaint? Is it affected by the doctrine of Mushaa?

Issue (6): Is the plaintiff an illiterate pardanashin woman? Had she executed the deed of gift with full knowledge of its contents? Was she a free agent at the time of the alleged execution of the deed of gift and had she competent advice at that time?

2. On the materials placed on the record, the learned Subordinate Judge in the Court below came to the conclusion that the plaintiff generally knew that the document sought to be avoided in the suit by the plaintiff was executed by her, that she generally knew that it was a Hebanama and not an Ammukhtearnama, as alleged by her in the course of her deposition. The Judge in the Court below came also to the conclusion that there was some show of reading over the document to the plaintiff, but that was not sufficient. According to the Subordinate Judge, the definite case sought to be proved by the plaintiff as stated in her plaint, that the defendants fraudulently took her thumb impressions on some blank papers, representing that it was necessary for the purpose of an Ammuktearnama, had not been established. As has been stated by the learned Judge in the Court below, the case made out on evidence before the Court was somewhat different. The different case sought to be made out by the plaintiff was indicated by the issues raised in the case; and the prayer for allowing the party to raise issues which could not properly be raised on the pleadings of the parties may be questioned. The Judge in the Court below has, on the materials before him, gone into the questions indicated in the issues to which reference has been made, and it has been found as a fact that the plaintiff in the case before us has been successful in making out the case that the defendants were in a position at the time of the execution of the Hebanama to dominate her will. According to the Judge in the Court below, the Hebanama sought to be avoided by the plaintiff in the suit was essentially an unfair transaction vitiated by undue influence and was therefore invalid. The conclusion arrived at by the Subordinate Judge in his judgment was this: that the plaintiff was an illiterate pardanashin woman, that she did not execute the document with full knowledge of its contents, and had not competent advice at the time of the execution of the deed. These are the material findings arrived at by the Court below on the merits of the case regarding the execution of the Hebanama sought to be avoided by the plaintiff. The Judge in the Court below then came to the conclusion that there was delivery of possession to the defendants of the property mentioned in the Hebanama.

3. On the question of limitation, which was expressly raised in the suit, regard being had to the first issue framed by the Court, as to whether the suit was barred by limitation, the conclusion arrived at by the Court below was that the plaintiff came to know of the facts entitling her to have the instrument set aside within three years of the date of the institution of the suit. The evidence on the point coming from the plaintiff herself that it was only at the time of her cross-examination in a criminal case that she knew of the fact relating to the execution of the Hebanama and the facts entitling her to have the instrument set aside, has been believed by the learned Subordinate Judge in the Court below; and the suit was accordingly held not to be barred by limitation. With reference to the finding on the merits of the case, namely execution of the Hebanama by the plaintiff, the conclusions come to by the trial Court have already been referred to. As has been indicated already, the Judge in the Court below has by his judgment given relief to the plaintiff in a case which was not the case of the plaintiff as stated in the plaint filed in Court, and which case has been disbelieved by the learned Judge on the evidence before him. The relief was granted on the grounds that the plaintiff had been successful in proving that the defendants were in a position at the date of execution of the deed to dominate over her will, and that the Hebanama in suit represented an unfair transaction, was vitiated by undue influence, and therefore invalid. This is a position which is not indicated by the plaintiff's assertion made in the plaint and such position is not indicated by her evidence before the Court. The fact that the defendants were in a position to dominate her will, that the Hebanama represented an unfair transaction, and that undue influence was brought to bear upon her in the matter of execution of the document, must in course of things be established by clear and cogent evidence. There was absolute want of such evidence before the Court.

4. In our judgment it has not been established, on the materials on the record that the plaintiff was such a pardanashin woman who had no business experience and with reference to whom it could be said that the document Hebanama was executed by her without full knowledge of its contents and that she was not a free agent in respect of the transaction evidenced by the Hebanama. So far as the evidence bearing upon this part of the case is concerned, it comes from the plaintiff and a case against the plaintiff was sought to be made out by the evidence given on the side of the contesting defendants in the suit. The evidence mostly comes from interested witnesses; but the fact remains that there is an endorsement contained in the registered document, the Hebanama; an endorsement showing that the executant was fully aware of the contents of the document executed by her. There was the further evidence coming from a disinterested witness, the Sub-Registrar, before whom the Hebanama was presented for registration, and by whom the document was registered. The Sub-Registrar is definite in his statement before the Court that the female executant, the plaintiff, replied to his enquiries from behind a parda and said that she had executed the document, whereof she was the executant. On the materials before us, we have no hesitation in coming to the conclusion in disagreement with the conclusion arrived at by the learned Judge in the Court below that the plaintiff did execute the document with full knowledge of its contents. We are not of opinion that the Judge is right that she was not free agent at the time of execution of the document. In our judgment the Judge in the Court below was not right in allowing issues to be raised which are completely beyond the averments made in the plaint, and the evidence does not support the conclusion arrived at by the Judge in the Court below with reference to non-execution of the Hebanama in suit with full knowledge of its contents. As indicated above, the findings arrived at by the Judge in the Court below in favour of the plaintiff cannot be accepted by us on the materials on the record. In our judgment, the plaintiff has not proved her case as stated in her plaint and as indicated by the issues raised on the merits of the case, as indicated by issue 4 in the suit.

5. The plaintiff's case was that the Hebanama was affected by the doctrine of Mushaa. The finding arrived at by the Judge in the Court below which has a bearing on this part of the case, was that there was delivery of possession to defendant 1 of the properties mentioned in the Hebanama. It is necessary to advert to the position which had to be taken into consideration in regard to the application of the doctrine of Mushaa in the case before us. It would appear that in most of the properties covered by the Hebanama the plaintiff had 16 annas interest. It was only in respect of a few items of the properties covered by the document that the plaintiff had definite and defined shares; and on the materials before us, regard being had to the entries in the settlement records, the plaintiff was in separate possession of her defined shares, in the sense that rents were being realized by her in respect of her own shares from the tenants on the lands. It must be taken that it was with reference to this position which is apparent from the materials on the record that the definite conclusion was arrived at by the Judge in the Court below that there was delivery of possession to defendant 1 of the properties mentioned in the Hebanama. In view of the nature of the items of properties covered by the Hebanama and in respect of which it was sought to apply the doctrine of Mushaa, it had to be noticed that a valid gift under the Mahomedan law may be made of a Mushaa of an undivided property, if the property is of such a nature that its enjoyment in an undivided condition is more profitable and advantageous than its enjoyment after division: see Fayyaz-ud-din v. Kutab-ud-din AIR 1929 Lah 309. The doctrine of Mushaa cannot apply to a specific share in landed property which must be looked upon as a separate property: see Jiwan Bakhsh v. Imtiaz Begam (1878-80) 2 All 93. Furthermore, the possession taken under an invalid gift of Mushaa transfers the property: see in this connection Danoo Darjee v. Momatajaddi Bhuiya (1913) 17 C L J 85. In the above view of case before us, we are entirely unable to agree with the decision of the Judge in the Court below that the Hebanama could be declared to be invalid because of the doctrine of Mushaa.

6. The question for limitation comes in for consideration next. As has been indicated already, the suit was instituted by the plaintiff after the expiry of three years from the date of execution of the Hebanama, namely on 27th January 1929; the suit was filed on 28th September 1932. The Judge in the Court below has held as indicated already, that the facts which entitled the plaintiff to have the instrument set aside came to her knowledge only at the time of the criminal case on 1st June 1932. So far as the knowledge of the document is concerned, we must, in accordance with the conclusion arrived at by us on the merits of the case that the plaintiff had executed the Hebanama with full knowledge of its contents, hold that the suit was barred by limitation, on the footing that Article 91, Sch. 1, Limitation Act, was the provision applicable to the plaintiff's case. In addition to what has been found above on the merits of the case relating to the execution of the Hebanama by the plaintiff and the knowledge of its contents, it may be mentioned that in a document executed by the plaintiff's husband on the same day-a deed of settlement or Nirupanpatra-it was expressly stated that the husband Sahebjan Khan was making arrangements evidenced by the deed of settlement, with the consent of his wife and future heir, the plaintiff. That document is a registered document; and we fail to see how it could be said that the plaintiff was not aware of the Hebanama or the contents of the same, so as to enable her to get rid of the bar of limitation as provided by Article 91, Sch. 1, Limitation Act. In our judgment, the plaintiff had full knowledge of the document Hebanama, and had full knowledge of the contents of the same; and it could not be said that she was not in a position, within the time allowed by the law of limitation, to institute her suit. The plaintiffs' suit was therefore barred by limitation.

7. It was urged before us that in view of the position that as in addition to the prayer for cancellation of the document Hebanama, there was the express relief prayed for in the suit by the plaintiff, for confirmation of possession or for possession of the property covered by the Hebanama, in the alternative, the provision of the Indian Limitation Act applicable to the case of the present description was not Article 91, Sch. 1 of the Act, but Article 142; and that if Article 142 was the appropriate Article applicable to the case before us, the plaintiff's suit was within time. Reference has already been made to the prayers made in the plaint. The reliefs sought by way of prayers made by the plaintiff in her suit was for cancellation of the Hebanama as a transaction vitiated by fraud, by undue influence, and on other grounds. The prayer was then made when the plaint was allowed to be amended by the Court below, for confirmation of possession or for possession of the properties in the alternative., In regard to the position thus indicated, it is to be noticed that in a suit where there is not only a prayer for cancellation of a document, as the Hebanama in the case before us sought to be avoided, but also for confirmation of possession of the properties covered by the deed, the position must be recognized that if the defendant is put in possession by virtue of an instrument which is not void on the face of it, as in the case before us, a suit for possession even without a prayer for cancellation of the document would not take it out of the operation of Article 91, Sch. 1, Limitation Act. In such a case the prima facie title remains with the defendant, and until that title is defeated or displaced, the possession of the defendant cannot be disturbed: see in this connection, Jagadamba Chowdhurani v. Dakhina Mohan (1886) 13 Cal 308. It may be taken to be established now that where in a suit for recovery of possession there is an obstacle in the way of granting relief in the shape of gift or settlement, the plaintiff cannot get any relief until such instrument is set aside; and as it has been said, if it is too late for setting aside the document, the suit for possession should also fail: see Sarat Chandra v. Kanai Lal AIR 1921 Cal 786 and Raja of Ramnad v. Arunachellam Chettiar AIR 1916 Mad 350. In the above view of the case before us the claim in the suit in which the appeal has arisen was barred by limitation on the date on which it was instituted. The result of the conclusions we have arrived at as mentioned above, is that the appeal is allowed: the decision and decree passed by the lower Court are set aside: the suit in which this appeal has arisen is dismissed. The plaintiff respondent must pay the costs in the litigation including the costs in this appeal, to the appellants, the defendants 1, 3 and 4 in the suit.

8. F.A. No. 44 of 1934 with Cross-objections.-This appeal has arisen out of a suit for a declaration that a document, a deed of settlement (Nirupanpatra) was fraudulent and invalid as it represented a transaction which was void. The plaintiff prayed in the plaint that the aforesaid deed of settlement executed by her husband, Saheb Jan Khan, in favour of Jafar Ali Khan on 27th January 1929, should be cancelled on the ground that it was illegal and void, and was tainted with fraud and misrepresentation. There was also a prayer for confirmation of possession of the properties covered by the deed of settlement, and in the alternative for possession of the properties covered by the deed and for cancelling the same.

9. The case for the plaintiff was that on the date her husband died, some blank papers were placed before him by the defendants 3 and 4 for the purpose of obtaining his thumb impression on them. The representation made by the defendants was that the thumb impression was necessary for the purpose of an Ammuktearnama. It was asserted by the plaintiff in the suit that her husband was, at the time when he was made to put his thumb impressions on the blank papers presented to him by the defendants, suffering from what is known in Mahomedan law 'marzulmaut' or death illness, and her husband Saheb Jan Khan was not at the time in normal state of health and in full possession of his senses. On the pleadings of the parties the material issue, on the merits of the case, was Issue 4:

Was the deed of gift mentioned in the plaint fraudulent and taken under misrepresentation and undue influence as stated in the plaint? Is it affected by the doctrine of Mushaa?

10. There was also an issue raised on the question of limitation, namely, Issue 1 framed in the suit: Is the suit barred by limitation? The learned Subordinate Judge in the Court below has, on consideration of the materials placed on the record by the parties concerned, come to the conclusion that the plaintiff had failed to prove that Saheb Jan Khan was quite senseless at the time of the execution of the deed or incapable of giving rational answers to questions put to him. It was also found as a fact by the trial Court that there was no doubt that the signatures of Saheb Jan on the deed of settlement were genuine signatures made by Saheb Jan himself while he was able to do so. The Judge in the Court below came to the further conclusion that he believed the defence evidence to the effect that Saheb Jan knew at the time that he was executing a deed of settlement and that he did not merely put his thumb impressions on blank papers as alleged in the plaint. According to the Judge in the Court below the plaintiff had failed to prove that the deed of settlement was a fraudulent document. It was however held by the learned Subordinate Judge that it was satisfactorily established that Saheb Jan had no sound disposing capacity at the time of the execution of the document, and that though he was not actually senseless, he had no sound disposing capacity.

11. The conclusions to which reference has been made above, arrived at by the Court below, related to the question of the execution of the deed of settlement which was sought to be avoided by the plaintiff in the suit. The other findings which have a direct bearing on the question of the application of the principle of marzulmaut, was that Saheb Jan, the executant of the deed of settlement, was suffering, from illness which according to the Mahomedan law was to be considered to be marzulmaut or death illness. On this part of the case the plaintiff gave her own evidence. The contesting defendants in the suit led evidence to establish that Saheb Jan, at the time of the execution of the deed of settlement (Nirupanpatra) sought to be avoided by the plaintiff in the suit, and long after that, was in sound state of health. The indication given in the evidence on the side of the contesting defendants was that Saheb Jan's death was of a sudden nature. There was no reason therefore for any apprehension of his imminent death. The evidence given in the case has been considered by the Judge in the Court below. Reference was made before us in detail to that part of the evidence which bears directly on the question of the application of the doctrine of marzulmaut.

12. In our judgment the Judge in the Court below has directed himself rightly in considering the evidence bearing upon this part of the case, and we take it that definite finding arrived at by the Judge in the Court below that Saheb Jan had a sound disposing power must be taken along with the other finding arrived at by the Judge that Saheb Jan was suffering at the time from marzulmaut or death illness. So far as this part of the case was concerned, it may be mentioned that there is ample authority of decisions, that if an illness is prolonged or lingering as in the case of consumption or phthisis, so as to remove the apprehension of immediate fatality or to accustom the patient to the malady, so much so that it becomes a part of his physical system, it will not be marzulmaut; and the executant of a deed could not be held to be under an apprehension of death on the day he executed the same, and that the mere fact that he was suffering from phthisis or that he died a few days after was not enough to warrant the application of doctrine of marzulmaut. See the cases in Karimanessa Bibi v. Hamedulla AIR 1926 Cal 401, Syed Reza Ali v. Kazi Nuruddin Ahmed and Rashiduddin Khan v. Naziruddin AIR 1929 + 721. As however there is in the case before us, evidence which may be said to be trustworthy, regard being specially had to the evidence of the medical practitioner examined on the side of the plaintiff, that Saheb Jan's condition was very bad, and that there was a very great apprehension of death, we accept the finding arrived at by the Judge in the Court below, although not without some degree of hesitation, that + Jan was suffering, at the time of the execution of the deed of settlement (Nirupanpatra) in suit, from what is known as marzulmaut.

13. The question arising for consideration next is whether the doctrine of Mushaa is applicable to this case. The application of that doctrine, as has been indicated in our judgment in Appeal from Original Decree No. 43 of 1934, which has just been delivered, depends on the nature of the property covered by a document. As we have observed in the other case, the doctrine of Mushaa could not be held applicable to a case in which there were defined shares in certain items of property, though undivided, and held by cosharers for their convenience. In the case before us, as in the other case, some items of property only covered by the deed of settlement executed by Saheb Jan in favour of Jafar Ali Khan, sought to be avoided by the plaintiff in the case, were undivided shares; but the shares were defined, and there was realization of rents and profits out of the definite shares dealt with by the deed of settlement. There was furthermore delivery of possession to defendant 1 of the properties mentioned in the deed of settlement, as found by the Court below. In the above view of the case before us, it could not be said that there was a transfer of Mushaa so as to attract the operation of the doctrine of Mushaa under the Mahomedan law in respect of an undivided property.

14. The question of limitation arises for consideration in the case. In view of the conclusion arrived at by the Judge in the Court below that there was delivery of possession of the property covered by the deed of settlement (Nirupanpatra) executed by Saheb Jan Khan, it could not, in our judgment, be said that the plaintiff had no knowledge of the document she wanted to avoid. The Hebanama executed by her on the same date as the deed of settlement executed by Saheb Jan, contained a recital to this effect: "I have given my consent to the deed of settlement executed (this day) by my husband Saheb Jan Khan in your favour (that is, in favour of Jafar Ali Khan, defendant 1 in the suit) and I am bound by that." We have in the case giving rise to Appeal from Original Decree No. 43 of 1934, held that the Hebanama could not be avoided as the document was executed by the plaintiff with full knowledge of its contents. Our decision therefore must be, and it is, that the plaintiff had knowledge of the deed of settlement at the time of the execution of the Hebanama and of the deed of settlement executed on the same date-one by the plaintiff herself and the other by her husband Saheb Jan Khan, on 27th January 1929. With reference to the application of Article 91, Schedule 1, Lim. Act, we have given our decision in our judgment in the connected Appeal No. 43, and for the reasons stated in that judgment, Article 142, Sch. 1, Lim. Act, cannot apply to this case. The plaintiff's suit was barred by limitation and it must be dismissed on that ground.

15. In the result, the appeal is allowed: the decision and decree of the Court below, against which this appeal was directed, are set aside. The plaintiff's suit in which this appeal has arisen is dismissed with costs throughout, including the costs in this Court, payable by the plaintiff-respondent to defendants 1, 3 and 4, appellants. The hearing fee in this Court is assessed at three gold mohurs The cross-objections preferred by the plaintiff-respondent were not pressed and are dismissed. There is no order as to costs in the cross-objections.