1
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
Present:
MR. JUSTICE S.M. EMDADUL HOQUE
CIVIL REVISION NO. 3633 OF 2022.
IN THE MATTER OF:
An application under Section 115 (1) of the Code of Civil Procedure, 1908.
- AND -
IN THE MATTER OF:
Anwar Hossain Sheikh and others ..... Petitioners.
-Versus-
Md. Amin Hossain Sheikh and others.
…… Opposite parties.
Ms. Suria Nasrin, Advocate
….. For the petitioners. Mr. Md. Rafiqul Islam, with
Mr. Md. Giash Uddin (MIthu)
….. for the opposite Party parties.
Heard on: 24.04.2024, 25.04.2024, 08.05.2024
and Judgment on: 09.05.2024.
On an application of the petitioner Anwar Hossain Sheikh and others under section 115 (1) of the Code of Civil Procedure, 1908, the Rule was issued calling upon the opposite party No.1 to show cause as to why the impugned judgment and decree dated 28.03.2022 (decree signed on 03.04.2022) passed by the learned Special Judge, Special Judge Court, Faridpur, in Other Class Appeal No.70 of 2016, allowing the appeal and thereby reversing the judgment and decree dated 08.03.2016 (decree signed on 19.04.2016) passed by the learned Senior Assistant Judge, Faridpur, in Other Class Suit No.78 of 2010, decreed the suit, shall not be set-aside and/or such other or further order or orders passed as to this Court may seem fit and proper.
Facts necessary for disposal of the Rule, in short, is that the opposite party as plaintiff instituted Other Class Suit No.70 of 2016 in
the Court of Senior Assistant Judge, Faridpur for cancellation of the impugned deed contending inter-alia, is that the plaintiff is the owner
of the disputed land and he got the same by inheritance. The land of moujua No. 29, S.A. khation No.2844, hal DP. 710, land measuring 39 decimal, S.A. No. 2640, hal-1328, land measuring 5 decimal, S.A. No. 2640, hal-711, land measuring 13 decimal, and along with 14 decimal
of S.A. khation No.2841 and total land measuring 62 decimal owned
by the plaintiff and his home state is situated at dag No.534/535, while the remaining lands are currently under the plaintiff’s possession and cultivation. The said scheduled land was described in
kha schedule and the registered deed no. 3743 is explained in Ka schedule. The plaintiff owned and possessed the said land by kabala deed No. 5756, dated. 26.09.1982. The plaintiff is a very old man, he
has six sons and one daughter and also his wife is dead. On the other hand the defendant lives in plaintiff’s residence and the plaintiff has
no property apart from the disputed land. Defendant No.4 is his divorced daughter and resides with the plaintiff, while defendant No.5-7 mainly attend to the plaintiffs needs and are responsible for his maintenance. On 15.05.2008, the plaintiff called all his sons and daughter to distribute his property equally among them. Defendant Nos.1-7 accepted the said offer and executed a gift deed. During this meeting, the defendant No.2 arrived and declared that the said land is owned by a gift deed in the names of defendant Nos.1-4 and claiming that there is no right and possession over the said property of defendant Nos.5-7. After that the plaintiff obtained the said deed from the Modhukhali Sub-Registry office and asserted stated that the said gift deed, in question, is false, fabricated, unlawful and he did not execute it. As he is an illiterate and an elderly man of faith, so he does not have any intention to deprive his heirs. Hence the suit.
The said suit was not contested by the defendants and there was no file written statement. The defendant side since did not contest the suit, the matter was taken as an ex-parte hearing and during which the plaintiff deposed as P.W-1 before the Court. After the deposition, the plaintiff passed away on 26.04.2021 and thereafter, the defendant Nos.5, 6 and 7 submitted an application for substitution on 08.06.2011 but in the meantime, by the order of the Court, P.W-2 presented the balam book and validated the registered deed (Exhibit-4) on the date fixed which is on 25.07.2011.
By the said order, the Court also allowed the application for substitution and accordingly the defendant No.5, 6 and 7 became the plaintiff No.1(ka)-1(Ga) and thereafter the plaintiff filed an application for amendment of the plaint on 29.02.2012 with a prayer for partition of the suit land and accordingly the said application for amendment was allowed on 29.02.2012. Thereafter, the added plaintiff No.1 (ka), Md. Amin Hossain Sheikh, deposed as P.W-3 in support of their case.
The trial Court, after hearing the plaintiff and also considering the papers and documents as available on the record, dismissed the suit by its order No.66 dated 13.04.2016.
Against the said judgment and decree the plaintiff opposite party preferred the Title Appeal No.70 of 2016 before the learned District Judge, Faridpur. The said appeal was heard and disposed of by the learned Special Judge, Special Judge Court, Faridpur who, after hearing the learned Advocate and on perusal of the record and the provisions of law, allowed the appeal and thereby setting-aside the judgment and decree of the trial Court and decreed the suit by its judgment and decree dated 28.03.2022.
Being aggrieved by and dissatisfied with the impugned judgment of the Appellate Court, the defendants, as petitioners, filed this revisional application under Section 115(1) of the Code of Civil Procedure, 1908 and obtained the Rule.
It appears that after disposal of the appeal by the Appellate Court, the final decree was drawn up on 03.04.2022 but the appellant side did not challenge the said final decree.
Mr. Md. Rafiqul Islam, along with Mr. Md. Giash Uddin (Mithu),
the learned Advocate appearing on behalf of the opposite parties through vokalatnama to oppose the Rule.
Ms. Suria Nasrin, the learned Advocate appearing on behalf of
the petitioners, as plaintiff, now the opposite party, all of whom are siblings and the heirs of the original plaintiff, namely Md. Amzid Ali Sheikh. She further submits that the said Amzid Ali Sheikh executed a
gift deed in favour of the petitioners and the said deed was duly registered therefore it cannot be canceled as such the impugned judgment and decree is liable to be set-aside. She further submits that
the suit was dismissed though the defendant did not contest the suit
during the trial even in the Appellate stage but the Appellate Court without considering the facts that the appellant side failed to demonstrate any breach of the terms and conditions of the deed. She further submits that since the original plaintiff gifted the land in favour
of the defendant petitioners and in such a case after his death the said
deed should not be canceled or revoked. But the Appellate Court did
not consider the said vital facts of the case and erroneously passed the impugned judgment. She prayed for making the Rule absolute.
On the contrary, Mr. Md. Rafiqul Islam, along with Mr. Md.
Giash Uddin (MIthu), submits that the Appellate Court rightly passed
the impugned judgment. He further submits that admittedly Mr. Amzid Ali Sheikh gifted the suit land and accordingly executed the
deed but the possession has not been given to the defendant petitioners. He further submits that in the plaint as well as in his deposition it is found that Amzid Ali Sheikh expressed his intention to gift the suit property equally to his six sons and one daughter but the defendant No.1 fraudulently obtained the registered deed, excluding the other three sons, who are the current opposite parties. He further submits that since the father, who executed the deed, has challenged it, asserting that it was obtained by the defendant No.1 fraudulently, who succeeded in registering it but the desire of the donor is that he gifted the suit land in favour of his six sons and one daughter equally and the said facts came to the light of the plaintiff, the executant, after opening the deed and accordingly before delivery of possession, he filed the instant suit. He further submits that inadvertently the schedule of the plaint wrongly mentioned the impugned deed and thus the trial Court on technical grounds took view that the statements made in the plaint and the deed were not similar. He further submits that subsequently at the appellate stage, the plaintiff side amended the said mistake. He also submits that since the deed obtained by the defendant No.1 fraudulently, excluding the three sons of the original plaintiff and the original plaintiff filed the suit on the ground that the said deed obtained by the defendant petitioner by committing fraud and since the plaintiff categorically said that he has no such intention to gift the deed in favour of the defendants only and in such a case the Appellate Court rightly passed the impugned judgment. He further submits that after the death of the original plaintiff, the subsequent plaintiffs, and the defendants, all of whom are siblings, have claimed their respective shares of the contested land and accordingly the Appellate Court since declared the gift deed illegal and fraudulent thus pass an order for partition and as such there is no error in the impugned judgment of the Appellate Court. He prays for discharging the Rule.
I have heard the learned Advocate of both the sides, perused the impugned judgment of the Courts below and the papers and documents as available on the record.
The fact of the suit is that the original plaintiff late Amzid Ali Sheikh filed this suit, believing that he had equally gifted the land to his six sons and one daughter but the present petitioners collusively and fraudulently succeeded to execute the deed, thereby excluding the present opposite parties, the three sons of the original plaintiff.
It appears that the deed was executed on 27.11.2008 and the plaintiff filed the suit on 01.08.2010 and in the plaint he stated the details that as per his desire the aforesaid deed has not been executed and after he had come to know about the said facts, after procuring the certified copy of the same, he filed the case. In his deposition, as well as, in the plaint the, P.W-1 the donor specifically mentioned that he has six sons and one divorcee daughter. She resided in his house and in presence of all, he disclosed that he executed a gift deed in favour of all of them with equal share and accordingly he had authorized the defendant No.1 to register the deed but the said defendant No.1, the son, without the desire of the plaintiff and with ill-motive, fraudulently executed the deed, excluding his three sons and also in the deed it appears that the daughter only obtained two decimal of land. Thus he filed the case but unfortunately before the pronouncement of judgment the original plaintiff had expired and subsequently an application for substitution was made, resulting in defendants Nos.5-7 becoming the plaintiffs but the defendant side did not contest the suit. It appears that in the revisional application the petitioner did not raise any question that no summons were served upon them. It appears that the suit was taken up for ex-parte hearing and after the deposition of P.W-1 he died and thereafter the P.W-2 and 3 were examined and in the meantime the plaintiff side filed an application for amendment with a prayer for partition and which was also allowed. It appears that the trial Court only considering the facts that dismissed the suit to the effect that:
“আরজি র ৫(ক) দপায় প্রার্নথাাংশল, পররদ র জি ার মধখা ী াফ-জরজি িঃ
অরপশ র রফগত ইাং ২৭-১১-2008 তাররশখর জরজি রি কত 3743 ew ®j±¢ML c¡efœ p¤lr¡ ®O¡oe¡ c¢mm lc, l¢qa Hhw h¡¢aml O¡oe¡ j§mL ¢Xœ²£ c¡h£ Ll¡ qC m J Bl¢Sl agn£m f¢lQu "L' ¢qp¡ h g¢lcf¤l pcl p¡h- ®l¢S¢øÊ A¢g pl ®l¢S¢øÊL«a ¢hNa Cw 28-07-2008 a¡¢l Ml 3743 নাং
জমৌরখক দান ত্র রক্ষা জঘা না দর রদ, রর ত এফাং ফারতশ র জঘা না ম ক রি ক্রী দাফী করা ইয়াশে । পশ আরজি র প্রার্নথা এফাং তপলীশ ২টি
র্ক াফ-জরজি ষ্ট্রী অরপ ও তাররশখর উশে খ র্াকায় রনরদথষ্ট প্ররতকার অইশনর ৩৯/৪২ ধারার রফধান জমাতাশফক অরনরদথষ্ট রফ শয় জকান জঘা নাম ক প্ররতকার প্রদান করা যায় না।"
Inadvertently, in the plaint it has been mentioned that the registered deed being No.3743 dated 27.11.2008, which was claiming to be registered in Sub-Register Office, Modhukhali but in the schedule of the plaint it has been found that the said deed No.3743 dated 28.07.2008 was executed and registered in the Sub-Register Office, Faridpur thus the Court took view that the discrepancy in paragraph No.5 of the plaint and the schedule was contradictory, thus dismissed the suit without discussing the entire material facts of the suit.
It appears that at the appellate stage the plaintiff opposite party amended the said mistakes and thereafter the Appellate Court, after consideration of the evidence on record and the laws as well as facts and circumstances of the case, allowed the appeal and setting-aside the impugned judgment of the trial Court and decreed the suit.
It has already been considered that the petitioner filed this revisional application, challenging the only preliminary decree whereas it appears that in the meantime the final decree was drawn up but the petitioner did not take any step to challenge the final decree. On considering the evidence on record it is found that the
original plaintiff gifted 62 decimal of land and in his plaint as well as in
his deposition, categorically mentioned that he gifted the entire
portion of the land in favour of his six sons and one daughter equally.
But since the said desire of the donor has not been reflected in the
deed thus he filed the suit. It also appears from the facts and circumstances of the case that the said property has not been physically transferred.
However, the provision of the three essentials of a gift as mentioned in Article No.149 of the D.F Mulla’s Mahomedan Law, wherein, the three conditions have been disclosed that:
“It is essential to the validity of a gift that there should be
behalf of the donee, and
donor to the donee as mentioned in Section-150.” And Article 150 states that:
“(1) It is essential to the validity of a gift that there should
be a delivery of such possession as the subject of the gift is susceptible of (1). As observed by the Judicial Committee,
"the taking of possession of the subject-matter of the gift
by the donee, either actually or constructively," is necessary to complete a gift.”
And sub-article 2 of article 150 specifically states the procedure of the registration of a deed of gift does not cure the want of delivery of possession.
And in the Article 152 of D.F Mulla’s Mahomedan Law specifically mentions that:
“A gift of immovable property of which the donor is in actual possession is not complete, unless the donor physically departs from the premises with all his goods and chattels, and the done formally enters into possession.”
And in the Article 167 of D.F Mulla’s Mahomedan Law describes the provision of revocation of gifts as follows:
“(1) A gift may be revoked by the donor at any time before delivery of possession. The reason is that before delivery there is no completed gift at all. (2) Subject to the provisions of sub-sec. (4), a gift may be revoked even after delivery of possession except in the following cases-
The original donor is the father of the either side and accordingly he had desired to gift the suit property in faovur of his six sons and one daughter equally and accordingly he vested the power to his one son, the defendant-petitioner No.1, but upon obtaining the certified copy, the donor found that the intentions were not accordingly reflected in the deed thus immediately after knowing the said facts, he filed the suit for cancellation of the said gift deed.
It appears that the plaintiff also deposed before the Court and categorically stated the said the facts and the P.W-3 also supported the said deposition of P.W-1. Considering the entire provisions of law and the facts and circumstances of the case, it appears that the donor expressed his intention to gift the land in favour of his six sons and one daughter equally and accordingly vested the power to the
defendant-petitioner No.1 but ultimately the defendant petitioner register the said gift deed excluding the defendant Nos.5-7 the other three sons of the original plaintiff and no case that the father physically transferred the possession of the suit land in favour of the three sons and one daughter and no case that the father left that house after executing the deed and he categorically mentioned that the said gift was fraudulently executed by his son, the defendant- petitioner No.1.
After considering the aforesaid facts and circumstances of the suit and the provisions of law, it is my view that the Appellate Court rightly passed the impugned judgment and did not commit any error in law resulting in an error in the decision occasioning failure of justice.
Therefore, the Appellate Court passed a decree of partition, and accordingly Advocate Commissioner was appointed and the Advocate Commissioner physically delivered the possession to the opposite parties and accordingly final decree was drawn up, but the petitioner has not taken any action to contest the final decree.
However, it is my considered view that the gift deed executed by the original plaintiff was obtained against his will and accordingly I do not find any merit in the Rule.
In the result, the Rule is discharged without any order as to cost. The impugned judgment and decree dated 28.03.2022 (decree signed on 03.04.2022) passed by the learned Special Judge, Faridpur, in Other Class Appeal No.70 of 2016, allowing the appeal and thereby reversing the judgment and decree dated 08.03.2016 (decree signed on 19.04.2016) passed by the learned Senior Assistant Judge, Fridpur in Other Class Suit No.78 of 2010 is hereby upheld.
Sent down the lawyer Court records at once.
B.O. Obayedur