P L D 1958 Dacca 19 (PLP)

M. A. Khondkar for Appellant. M. Fazlul Huq for Respondents. ASIR, J.‑This appeal arises out a suit for partition with respect to 7 items of immovable property and certain items of movable properties as described in Schedules ka and kha respectively. It may be mentioned at the very outset that Schedule ga properties which were sought to be made the subject- matter of the partition have been withdrawn from the contest. The parties in the Courts below were concerned with the question as to whether the properties as described in Schedules ka and kha were liable to be partitioned in the present Partition Suit. The plaintiff claims as an heir of one Samiruddin Choudhury who was admittedly the original owner of all these properties‑ The plaintiff claims that on his death the properties devolved upon all his heirs including the plaintiff and some of the defendants who happened to he the sons rind daughters of the deceased Samiruddin Clroudhury. The defence inter alia was that Samiruddin Choudhury left no property at the time of death to be partitioned as between the heirs. It was also alleged that during the life‑time of Samiruddin Choudhury he made certain gifts in the form of hab‑bil‑iwaz and hiba‑ba‑sham‑ul‑iwaz in favour of the various defendants including the sons of the plaintiff himself. As such, according to the defendants, the plaintiff had nothing to inherit from the deceased father, Samiruddin Choadhury. The trial Court held that the plaintiff could not prove that he had any interest in any of the properties as per Schedules ka and kha except with regard to item No. 3 of Schedule ka. In that view of the matter, the trial Court gave a decree for partition with respect to item No. 3 or lot No. 3 of Schedule ka property alone. The share of the plaintiff being riot disputed, the trial Court gave a preliminary decree to that extent in respect of this lot No. 3 alone. On appeal, the learned District judge confirmed the decision of tire trial Court and dismissed the appeal with costs. In the present second appeal, the learned Advocate for the plaintiff‑appellant contends that the properties in suit having been admittedly the properties of Sarniruddirk Choudhury, they would have descended on the heirs including the plaintiff in normal course of events on his death. The defendants other than defendant No. 1 having not appeared and defendant No. I having also set up deeds of hiba‑bil‑iwaz and hiba‑ba‑shart‑ul‑iwaz, it was necessary for the defence to prove that such documents which were in essence deeds of gift had actually beer acted upon and that possession on the basis of such gift had been delivered. It was also necessary, according to the learned Advocate for the appellant, that payment of consideration as indicated in the deeds,of hiba‑bil‑iwaz was an essential element to be proved in order to hold that all those transactions were valid and binding deeds of transfer. The learned Advocate also contends that his client, namely, the plaintiff was prejudiced by reason of the fact that he was not allowed time for adjournment as asked for on the date of hearing on the ground that most of his witnesses could not attend Court on account of the rainy season and also on account of the distance to be travelled by them. With regard to the movables, the learned Advocate for the appellant contends that the learned District judge was in error in thinking that the plaintiff could not prove the existence of the movables, simply because a list of the articles was not proved before the Court, although there was evidence on record that Samiruddin Choudhury had movables during his life‑time. On the question of adjournment, the learned Advocate for the appellant has relied upon the provisions of section 105 read with Order XVII, rule 1 of the Code of Civil Procedure. On reference to the relevant section and other provisions of the Code of Civil Procedure, it seems the desirability of granting an adjournment in, the circumstances in which the, plaintiff was placed on the 15th June 1950, when the trial commenced, was considered by the learned Subordinate judge, as also by the learned District judge while in the state of an appeal. It appears that the learned Subordinate judge while rejecting the application for adjournment did not consider the implication of rule 143, as provided in Chapter VII of the Civil Rules and Orders, Volume I, read with the provisions of paragraph I8 of the Manual of Practical Instructions for the Conduct of Civil Cases issued under the authority of the High Court. It seems that 14th December 1949 was fixed as the first peremptory date of hearing by an order dated the 15th November 1949. On the prayer of defendant No. 1, this peremptory date of hearing was shifted to the 26th January 1950. Thereafter it seems a defendant died and the suit could not be heard on the date fixed. Sometime after that, the 23rd May 1950 was again fixed as peremptory date of hearing. But on the 20th May 1950, the presiding officer being likely to be engaged in Sessions, this was again shifted to the 5th June 1950. Again on the 5th June 1950, the presiding officer being likely to be engaged in Sessions, the date was shifted to the 15th June 1950. It seems, there fore, that the learned Subordinate Judge did not keep in view the provisions of Chapter VII of the Civil Rules and Orders, Volume I, while shifting dates from the 23rd May 1950 to the 15th June 1950. Within a space of less than one month the date of hearing was shifted twice and it does not appear whether convenience of the parties or of the pleaders concerned was at all kept in view by the learned Subordinate judge while so shifting the dates. It would not be too much to say that the learned Subordinate judge was not quite right to overlook the, provisions of Chapter VII of the Civil Rules and Orders, Volume I, and paragraph 18 of the Civil Suit Instructions Manual referred to above. In this connection, reference may be made to certain decisions in the cases of Sheikh Yaruddin and others v. R. Das (A I R 1946 Pat. 165) and Kazimaddi Sardar and others v. Makramali Molla and others (67 C L J 516). It is very much desirable that the difficulties of the parties should be kept in view while fixing dates of hearing. It cannot be disputed that the rainy season of the year is recognised as one of the possible circumstances which should weigh with a Court of law in the matter of granting adjournments. So far as this particular case is concerned, it is not disputed that the parties and their witnesses had to travel a long distance for attending the Court. As such, short intervals in the matter of fixation of peremptory hearing dates as done in the present case cannot be approved. This circumstance alone would have been sufficient for me to send the case back on remand to the trial Court for a fresh trial. But the plaintiff seems to have willingly come to the witness‑box and taken the trial in spite of the fact that the application for adjournment was rejected by the learned Subordinate Judge. It does not also appear that the plaintiff pursued his prayer for adjournment further. He had examined himself and his only witness P. W. 2 who, according to dim, was available on that day. It appears he himself was present at least one day before the trial commenced, as, an application for acceptance of certain documents seems to have been filed in Court. He did not press for this that unless the other witnesses would come, he would be seriously prejudiced in the matter of proving his case. He does not also make a grievance of this situation while he deposed and gave evidence on oath. It is not clear from the materials or the evidence on record as to what circumstances or what part of his case would be proved if the other witnesses were available on that day. Nor does it appear that after examining himself and his other witness, P. W. 2, he asked for any further adjournment just . to take a chance of bringing the other witnesses. It is indicated in paragraph 18, sub‑para. 14 at page 16 of the/ Civil Suits Instructions Manual that if certain important witnesses are absent for unavoidable reasons, then another date fort the attendance of the absent witnesses can be fixed after examination of those witnesses who are available on the peremptory date of hearing. The plaintiff did not at all take any steps in that way. In these circumstances, I do not think it desirable to enter into the question as to whether there was sufficient cause within the meaning of Order XVII, rule 1 of the Code of Civil Procedure entitling him to get an adjournment as asked for on the 15th June 1950, unless it C can be shown that such an order refusing the prayer for adjournment affected the decision of the case as indicated in section 105 (1) of the Code of Civil Procedure. This takes us to the consideration of the question of onus as raised by the learned Advocate for the appellant in connection with the various Exhs. A Series set up on behalf of the defence. It cannot be disputed that, in a case like this, the onus was certainly upon the defendants who set up the documents, Exhs. A Series, to prove something which, if valid, would operate contrary to the ordinary law of inheritance. It has been held by their Lordships of the Judicial Committee in the case of Chaudhuri Mehdi Hasan and others v. Muhammad Hasan (LR 33I A 68 (75)) that "By the Muhammadan Law (by which the present case is governed), a holder of property may in his life‑time give away the whole or part of his property if he complies with certain forms ; but it is incumbent upon those who seek to set up such a transaction to show very clearly that those forms have been complied with. It may be by deed of gift simply, or by deed of gift coupled with consideration. If the former, unless accom panied by delivery of the thing given, so far as it is capable of delivery, it is invalid. If the latter (in which case delivery of possession is not necessary), actual payment of the consideration must be proved, and the bona fide intention of the donor to divest himself in praesenti of the property and to confer it upon the donee must also be proved : see Ranee Khujooroounissa v. Mst. Roushun Jehan (LR 31 A 291)." The learned Advocate for the respondent also does not dispute that the onus is upon his client to prove that these transactions were valid according to law or that possession was delivered oil the footing of such transactions. Although the Courts below seem to have placed the onus more upon the plaintiff than upon the defendant in this respect, yet the learned Advocate for :ire respondent by reference to the relevant evidence on record contends that so far his client's onus was concerned, that be said to have been duly discharged. Defendant No. 1, who has examined himself as D. W. 1, has proved in his examination- in‑chief as to the consideration that passed to respect of tile various transactions, Exh. A to Exh. A (6). This part of the evidence does not appear to have been challenged in cross‑examination. The fact of passing of consideration can, therefore, be said to have gone un-challenged. On the point of possession, the learned Advocate for the respondent relies upon other things and upon the entries ill the C. S. khatian which indicate that the names of tile respective douees have been recorded during the life‑time of tile donor Samiruddin Chowdhury except with regard to No: 1 and

2. There is no evidence or allegation from tile side of the plaintiff that all these transactions were tainted with fraud or that Samiruddin Chowdhury never knew the holding of Settlement operations at the relevant time or about the recording of the properties in the relevant khatian as stated above. It may be stated here that the plaintiff has not specifically attacked those transactions or. deeds of hiba bil‑iwaz and hiba‑ba‑shart‑ul‑iwaz on allegations of fraud or undue influence in his plaint. Nor is there any suggestion in the cross‑examination of the defence witneses to that effect. It is, therefore, difficult for me to hold that the onus in so far as poof of payment of consideration or of the intention of the donor to divest himself immediately or a little later was concerned has not been discharged from the side of defendant No. 1, at least in regard to lots 4, 5, 6 and

7. With regard to lots 1 and 2, even though passing of con sideration in respect of Exh. A (6) does not appear to have been challenged, yet the other element or test seems to be a little doubtful. The Courts below expected tile production of the Settlement khatian from the plaintiff. If the onus in the light of the observations of their Lordships of the Judicial Committee, as referred to above, lay upon the defendants, then in normal course of things the Settlement khatian with respect to these items of properties should also have come from the side of tile defendants and not from the side of the plaintiff. I should, therefore, think further investi gation should be made for determination of the question as to whether in the light of the relevant C. S. khatian it can be said that the donor intended to divest himself in praesenti by deli vering possession of the property ill pursuance of the deed of hiba‑bil‑iwaz which is said to cover these properties. The contention of the learned Advocate for tile respondent that the recital in the relevant document to the effect that possession has already been given to the donee was an admission binding on the heirs including the plaintiff cannot, to my view succeed. Their Lordships of the Judicial Committee have un doubtedly laid down in the case of Sheikh Muhammad Mumtaz Ahmad and others v. Zubaidajan and others (L R 16 I A 205) that such an admission on the part of the predecessor will be binding upon the heir. But an admission, which is at best a piece of evidence and estoppel, however well‑founded and well proved it may be, cannot be the foundation of title. Nor can an admission like this be said to be conclusive on the question as to whether possession has actually been delivered on the basis of the transaction in question. In this connection, reference may be made to the case of Mitra Sen Singh and others v. clank: Kaur and others (L R 51 1 A 326 (330‑331)) where their Lordships have observed : "But there estoppel stops, and it can never be reared up to the creation of a pukhtadari right of the proprietary, heritable, and transferable character, nor can it ever create a right of possession of the property for life under the same terms as some other person had previously possessed it upon. Such foundations of title are unknown, and they can never be created in such a manner". Their Lordships further said "that in cases of estoppel the onus of establishing the facts and circumstances from which estoppel arises rests upon the person pleading it". In the case of Jhuman v. Hussain and, others (A I R 1931 Oudh 7) His Lordship, while referring to the same as in L R 16 I A 205 "observed that declaration by a donor that possession has been given bind the heirs of the donor but it does not mean that such declara tion is conclusive". So far as lots 1 and 2 of Schedule ka are concerned, I do not think that such a statement in the document Exh. A(6),I can conclusively prove without any other material evidence that possession has been delivered in pursuance of the deed of hiba‑bil‑iwaz. The learned Advocate for the appellant points out with regard to the movables as per Schedule kha that on the clear evidence of D. W. 2 that his nana (Samiruddin Chowdhury) had movables during his life‑time and, in the absence of a denial in the written statement about the existence of such movables and further in view of the fact that the story of gift of those movables to the grand‑children of Samiruddin Chowdhury has been disbelieved, the Court of Appeal below ought to have presumed that those gifts were still existing and liable to be partitioned. The learned Advocate for the respondent has not been able to take his stand on the story of gift so far as the movables are concerned. Nor has he been able, although he claims to have got the homestead from his father, to throw any sight as to how or where these articles have disappeared, if at all. It cannot be disputed that Samiruddin Chowdhury clad some movables and that there is no case from the side of the defence that Samiruddin Chowdhury had disposed of those articles in any manner acceptable to a Court of law. Mere non‑production or non‑availability of a list of such movables cannot, I think, support the theory that the articles themselves did not exist. Even though no list may appear to have been left by the deceased Samiruddin Chowdhury, that does not disprove the existence of movables, if any, left by him. The onus in this behalf seems to have been wrongly placed upon the plaintiff and I think there is substance in the contention of the learned Advocate for the appellant so far as his claim to the movables is concerned. In the result, this appeal is allowed in part., The judgment and the decree. of the learned District Judge' of the Court of Appeal below are set aside to the extent the learned District judge has found against, the plaintiff in so far as lots 1 and 2 of Schedule ka are concerned and also in so far as the movables as per Schedule kha pre concerned. The case is sent back to the learned District judge for `disposal for that limited purpose according to law after determination of the question as to whether the defendants have been able to prove conclusively their title on the basis of Exh. A (6) to lots 1 and 2 of Schedule ka by proving actual delivery of possession on the basis of. that hiba‑bil‑iwaz and also after determination of the question as to whether the defendants have been able to prove satisfactorily the non‑existence or disappearance of the movables left by Samiruddin Chowdhury, on condition that it will be in his discretion to refer the case, if found necessary for the ends of justice, to the trial Court 'for further evidence if the parties so desire. The judgment and the decree of the Court of Appeal below in other respects will stand confirmed. I make no order as to the costs of this appeal. Further costs will abide the result. Z. A.S. Appeal partly allowed.