P L D 1970 Dacca 604 (PLP)

P. W. 1 Tamijar Rahman, son of plaintiff No. 1 Piarjar stated that Ashrafjan and Piarjan are the daughters of Asgha~ Ali by his second wife Jahura ‑ and Ambia was the mother of Abdur Rahman and that on Ashrafjan's death, .her interest devolved on her full sister Piarjan, the plaintiff No. 1 anc step‑brother Abdur Rahman, P. W. 1 further stated that Atar All, husband of Ashrafjan died leaving his widow Ashrafjan and brother Ismail and thereafter Ismail died leaving the defendant. It appears that the suit was filed on 24‑9‑61 and thereafter the defendant filed a written objection stating that Ashrafjan is not the full sister of the plaintiff No. 1 Piarjan and that plaintiffs Nos. 2 to 5 are not sons of Ashrafjan's step‑brother Abdur Rahman and that Ashrafjan had no brother named Abdur Rahman. Thereafter the plaintiff filed an application for amendment of the plaint and stated that Asghar Ali Chowdhury, son of Golam Nabi Chowdhury had his homestead etc. on R. S. Khatian No. 476 and that Asghar Ali after the demise 'of his first wife married Jahura Bibi and through Jahura Bibi Asghar Ali had two daughters, namely, plaintiff No. 1 Piarjan and Ashrafjan, Asghar Ali through his first wife had a son Abdur Rahman, three daughters Moshrafjan, Misrijan and Mafijunnessa. Thereafter Jabura died leaving plaintiff No. 1 Piarjan and Ashrafjan as her heirs. Asghar Ali died leaving one son Abdur Rahman, five daughters and a widow Jahura Bibi. Plaintiffs 2 to 5 are the sons of, Abdur Rahman. There is no cross‑examination of this P. W. 1' by the defendant as to the correctness or otherwise of the statement made by him in respect of the geneology and in support of the evidence of P. W. 1 we find the R. S. Khatian Exh. 3 which goes to show that Ashrafjan and Piarjan are sisters. The learned Munsif considered this aspect of the case and found that the plaintiffs rightly claimed the disputed, property by way of inheritance from Ashrafjan, and decreed the suit. The learned Subordinate Judge on appeal without considering the evidence of P. W. 1 simply referred to Exh. 3 Khatian and observed that the Khatian by itself cannot establish plaintiffs' claim that they inherited the suit property from Ashrafjan. The Khatian is a corroborative evidence in support of all the, statement made by P. W.

1. The Khatian has not been considered as the substantive evidence for the proof of plaintiffs' inheritance of the suit property from Ashrafjan. It appears from deposition of D. W. 2, who is defendant No. 1 that he stated in examination‑in‑chief that Piarjan is not sister of Ashrafjan, but in cross‑examination he stated that he did not know Piarjan who was alive at the time of filing the plaint and further admitted that P. W. 1 Tamijar Rahman came to his house and measured his land some 8 or 10 years back and took him there but he said that he did not see his mother. In view of the circumstances and that there was no cross‑examination of P. W. 1 I do not find any reason why the learned Subordinate Judge reversed the finding of the learned Munsiff in this behalf. In my view the plaintiff has been able to prove that plaintiff No. Piarjan was the full sister of Ashrafjan and that father of plaintiffs Nos. 2 to 5 was the step‑brother of Ashrafjan. Now the claim of the present suit is for setting aside the on the ground of fraud and undue influence. In a case for setting aside a kabala in which the executant is a Pardanashin lady, the onus heavily lies on the person who claims interest through the disputed kabala to prove that it was duly executed by the executant, that is, in the present case by Ashrafjan. On the point whether the document was read over and explained to the executant Ashrafjan, the evidence of D. Ws. 2, 4 and 7 are relevant. D. W. 2 is defendant No. 1 Altafur Rahman . stated that the contents of the kabala was read over to Ashrafjan and Ashrafjan signed through the pen of Matiur Rahman and that Ashrafjan put his thumb‑impression and he paid Rs. 1,000 as consideration and that Munindra read over the kabala and Ashrafjan stated that she understood the contents thereof and he admitted that the plaintiffs are not aware of the kabala. It is stated by him that the first talk for kabala took place in Agrahyan, 1356 B. S. and one Akmal Ali was present at that time and that Ashrafjan demanded Rs. 1,500 and he offered Rs. 1,000 and that Ashrafjan consulted Akmal Ali regarding the sale of the land ; that Manindra drafted the kabala with reference to R. S. Khatian supplied by him. D. W. 3 Manindra Lal Sarker, the scribe of Exh. B kabala i.e. Exh. 1 stated that he did not see the executant putting the thumb‑impression and he stated that he did not see passing of consideration and further stated that he after writing the document left that place. This witness does not say that he read over the document to Ashrafjan, although D. W. 2 the defendant stated that Manindra read over the document to Ashrafjan. D. W. 4 Matiyur Rahman, an attesting witness to Exh. B stated that he signed the name of Ashrafjan, obtained the thumb impression of Ashrafjan and that he read over the document to her who understood the contents of the document and in cross‑examination D. W. 4 stated that he saw the passing of consideration money of Exh. B and he could not say whether Altaf or Akmal paid the money to Ashrafjan and then he said "I do not know Ashrafjan". D. W. 7 Akmal Ahmed stated that he married in the house of Ashrafjan. and he attested Exh. B and obtained the thumb impression of Ashrafjan at the time of registration of the document on commission. He stated that D. W. 2 Altaf paid the money to him and he paid the same to Ashrafjan. Matiyur Rahman read out the kabala and Ashrafjan admitted to have understood the contents thereof. Now D. W. 2 stated that Manindra read over the kabala and D. W. 7 stated that Matiyur Rahman read over the kabala. D. W. 2 said that he paid the consideration money himself, whereas D. W. 7 Said that the consideration money was paid to him and he then paid it to Ashrafjan. So, there is enough discrepancy on the evidence of D. Ws. 2, 7 and 4 in the matter of payment of money and in the matter of reading over the document to Ashrafjan. Furthermore, from the judgment of the learned Munsif, I find that D. W. 4 Matiyur Rahman kept himself present inside the Court room when the defendant was examined and cross‑examined. So, his evidence cannot be relied on determining the points at issue between the parties. The learned Munsif observed the demeanour of D. W. 7 Akmal Ahmed and observed "His demeanour was suspicious". This D. W. 7 stated that Manindra Matiyur Rahman along with him were present when the consideration was paid to Asbrafjan. But D. W. 3 Manindra stated that he did not see the passing of consideration and that he left the place after writing of the document. D. W. 1 is Finger Print Expert and D. W. 6 is pleader Commissioner. D. W. 5 is Mir Mohibul Hoque, permanent Mohdrar of Sub‑Registrar's Office under authority of the Sub‑Registrar went to enquire whether Ashrafjan executed the document Exh. B and accordingly visited the executant and stated that Ashrafjan was identified by Akmal Ahmed and stated that he did not see Ashrafjan as she was a Pardanashin lady. So he authorised Akmal Ahmed to ‑ obtain the thumb impression in the place marked by him and this witness further stated :‑ "From inside the house she stretched her hand and Akmal Ahmed obtained the L. T.‑I. I saw a hand giving the thumb, from her voice it appeared to me that she was old and in good health." But in cross‑examination he stated that Akmal Ahmed caught the thumb and obtained L. T.‑I. This witness admitted that after obtaining the L. T.‑I. the hand was pushed back inside the house. It is stated that he deposed in examination‑in‑chief after refreshing his memory on seeing the report. It may be noted that there is no endorsement of this nature in the report. Exh. B is the disputed document and it appears that the Sub‑Registrar accepted the document stating "From the above report, I am satisfied that this document has been executed by the said Ashrafjan". Now the whole question is whether Ashrafjan of her own accord executed the document. When D. W. 5 Mabinal Haque stated that he went to the house of Ashrafjan on commission but he did not see Ashrafjan with his own eyes and he could not say whether there was any other person in the room of Ashrafjan, his evidence to the effect that he asked Ashrafjan whether she sold the suit property to Abdur Rahman and she answered in the affirmative, does not go to prove that in fact Ashrafjan gave the answer. It was the duty of D. W. 5 to ascertain whether there was any other person inside the room. Since I find from the evidence that he had no knowledge about this fact, his statement to the effect that Ashrafjan admitted to have executed the document cannot be relied on. Moreover, it is the definite case of the plaintiffs that Ashrafjan was very old and that she was unconscious and suffering from death agony at the time of execution of the kabala Exh. B. It is admitted by both sides that Ashrafjan died 12 days after the document was registered. There is no independent evidence in support of the case that Ashrafjan executed the kabala in her full sense. It may be noted that the defendants are not legal heirs of Ashrafjan and furthermore Ashrafjan was residing in her husband's house and naturally she had to rely on her husband's relations and in view of the fact that the possible heirs of Ashrafjan are the plaintiffs so it was essential for the defendant to produce some independent witness to substantiate their case that the said Ashrafjan out of her free will and on independent advice and without any influence, on receipt of due consideration executed the kabala Exh. B. The thumb‑impression Ashrafjan has been found to be genuine by Finger Print Expert but that alone cannot exonerate the defendant from proving that the said Ashrafjan executed the kabala knowing fully the contents thereof. The defendant made out a case in the written statement that Ashrafjan sold the land to pay up her previous debt. In the written statement the defendant stated that Ashrafjan for the benefit of her own soul and for the benefit of soul of her parent and for the purpose of making different charitable works sold the land for Rs. 1,

030. Whereas in course of deposition D. W. 2 stated that Ashrafjan sold the land to pay up the previous debt and D. W. 2 introduced one Shahab Mia, son of Serjan Ali from whom she took the land. But this Shahab Mia has not been examined. It is the consistent case of the plaintiffs that Ashrafjan had vast properties and there was no reason for her to incur any debt. So the subsequent development that Ashrafjan sold the property for her debt does not hold good. The learned Munsif considering the different kabalas produced came to the view that the consideration for Exh. B is low and it is also admitted by defendant himself. But the defendant gave an explanation stating that the land was under the bed of the river Sankha and some were on its bank and most of the lands were saline. But this aspect does not find place in the document itself. The pleader Commissioner who went to hold the local inspection was not a survey passed pleader Commissioner and he did not measure the suit land, but he simply stated that some plots were under the bed of the river Sankha and some on its bank. Whereas it is the evidence of defendant himself that R. S. Khatian 740 and part of 2486 and 2488 were diluviated after the execution of the kabala. The learned Munsif after considering Exhs. F and i(g) rightly concluded that the considera tion of the kabala is too low. There is no evidence that Ashrafjan had an independent advice regarding the execution of Exh. B. P. W. 2 stated that she consulted Akmal Ahmed regarding the disputed sale. This Akmal Ahmed is D. W.

7. The learned Munsif while recording his evidence noted: "He evades the question. If one question was put to him he would not answer it directly. His demeanour is suspicious", and from this observation of the learned Munsif and from the evidence adduced, it appears that he is related to Ashrafjan as his wife was brought up by Ashrafjan herself. He made out a case that the document was read out by Matiyur Rahman although the defendant said that the document was read out by Manindra. In my view learned Munsif was right in discarding the evidence of D. W.

7. Now in view of the fact that the plaintiffs have been able to prove that they are legal heirs of Ashrafjan and in view of the admission of D. W. 2 that the plaintiff had no earlier knowledge of the kabala, the learned Munsif was right in holding that the plaintiffs came to know of the kabala for the first time in Baisakh, 1368 B. S. But I do not find any cogent reason why the learned Subordinate Judge without considering the evidence of D. W. 2 decided the question of limitation from the date of the execution of the kabala. It is no doubt true that a registered document is a notice to the parties but in a case of this nature the burden of proof is on the defendant to show that the executant of her own accord bona fide made the transfer. In the circumstances of the case and on the facts as disclosed, the plaintiffs' suit is well within time, that is, from the date of knowledge as stated by the plaintiffs in the plaint. So the finding of the learned Subordinate Judge that the suit was barred by limitation is not sustainable in law. As earlier discussed the plaintiffs could prove that they are the legal heirs of Ashrafjan, so the finding of the learned Subordinate Judge that the suit is not maintainable cannot be sustained. The learned Advocate appearing for the respondents relying in the case of Benama v. Austin Motor Co. Ltd. (1955 A C 370), and in the case of Pir Ahsanullah Shah v. Pir Ziauddin Shah (65 C L J 270 (P C)), contended that the finding of the trial Court should not be lightly interfered with and that the Court of appeal below can override only after full consideration of all the materials. This proposition of law is, not disputed. But the question is when the trial Court after considering the evidence and demeanour of the witnesses came tol a finding which has been reversed by the lower appellate Court without giving due consideration on the proper aspect of the case, I find no reason why the findings of the learned Subordinate Judges on appeal should not be set aside. In the result, this appeal is allowed. The judgment and decree of the lower appellate Court are set aside and that of the learned Munsif are restored. In the circumstances of the case there will be no order as to costs. Leave under clause 15 of the Letters Patent prayed for is refused. S.Q. Appeal allowed.