P L D 1969 Dacca 52 (PLP)

A. K. M. BAQUER, J.‑This first appeal by the plaintiff‑appellant is directed against the judgment and decree of Mr. N. N. Das, Subordinate Judge, Dinajpur in Title Suit No. 36 of 1964, dismissing the plaintiff's suit for declaration of his 16 annas title to and for recovery of Khas possession of the suit properties as described in the plaint Schedule which includes a rice mill and its adjuncts. Plaintiff's case in short was that he was a retired officer of the Police Service and worked as Superintendent of Police in various districts of East Pakistan. Defendants Nos. 1 to 5 were the heirs of late Q. M. Asghar who was the trusted Zilladar of the plaintiff in the District of Gorakhpur in India. Asghar migrated to East Pakistan and took shelter with the plaintiff while the latter was serving in Dinajpur. Asghar fell in great distress and it was the plaintiff who had to support him and his family. The rice Mill belonging to Jagannath Hardeo Prasad situated at Shibganj was abandoned by the owners and was lying idle. Defendant No. 6, the Government of East Pakistan was eager to bring the said mill into running condition for promoting the industries of the province and for this purpose defendant No. 6 first requisitioned the mill under the East Bengal (Emergency Requisition of Property Act, 1948) and has been alleged that it was through the plaintiff's efforts that Q. M. Asghar got the said mill allotted to him on deposit of Rs. 11,000, and odd in 1961 and this amount was borrowed by Asghar from the plaintiff who took a further loan of Rs. 15,000 to bring the mill into running condition. The Government, that is, defendant No. 6 finally assessed the compensation money at Rs. 49,000 and odd. The original assessment being higher the plaintiff claimed to have brought it down. Plaintiff was again approached by Asghar for a loan to enable him to deposit the compensation money. By reason of pressure and pursuance of Asghar, plaintiff again made further advances amounting to Rs. 39,

000. Asghar had by that time assured the plaintiff that the full amount of compensation money had been deposited by him and on completion of certain formalities the authorities would complete the final transfer of the said Mill and premises to him. Having no means to repay the advance amounting to Rs. 65,

000. Asghar desired to sell, convey, transfer and assign all his right title and interest in the said Mill after he would acquire it from the Government. Asghar obtained further advances at times for running of the Mill of which an advance of Rs. 15,000 was made by cheque on 18‑2‑

62. Plaintiff brought a suit for recovery of this sum of Rs. 15,000 against the defendants in the Civil Court at Karachi. Some repayment was made by Asghar. The balance dues from Asghar amounted to Rs. 65,000 and this was acknowledged by Asghar in the Power‑of‑Attorney Exh. 1 as executed by him in favour of the plaintiff. The plaintiff claimed to have made this payment to Asghar in various ways that is directly by the plaintiff by bank drafts and also through plaintiff's sister's son Kazi Mozharul Hoque, plaintiff after taking legal advice at Karachi got an irrevocable General Power‑of‑Attorney executed and registered on 17‑2‑62 by the said late Asghar in his favour against the payment of Rs. 65,000 with the assurance and undertaking that on transfer of the said Mill to Asghar plaintiff would get the same transferred to himself pursuant to the Power‑of‑Attorney. The receipt of the full consideration money was acknowledged in the Power‑of‑Attorney itself. Asghar fell ill and suddenly died on 18‑7‑62 leaving defendants Nos. 1‑5 as his heirs. Knowing about his death plaintiff came to Dinajpur and was told that Asghar left some debts and that he has not deposited the entire amount of compensation money as assessed by the Government and that the Mill was not in a position to run. Defendant No. 2 admitted in writing the fact that Asghar had acknowledged the debt of Rs. 65,000 to the plaintiff and that he had executed a General Power‑of‑Attorney upon a contract to transfer the Mills to the plaintiff in consideration of the said debt. Defendants Nos. 1‑5 being unable to deposit the balance of compensation money and to pay the outstanding dues requ ested the plaintiff to clear up the dues and to deposit the balance of compensation money and to take possession of the Mill. Defendants sought plaintiff's permission to live temporarily at the quarters attached to the Mill and on defendant's request plaintiff occupied the Mill and its premises in 1962 and started running the Mill on obtaining licences from the authorities and also deposited the balance of compensation money and paid off the creditors of late Asghar. Plaintiff employed defendant No. 2 Md. Iqbal son of Asghar in the Mill just to help the family of the deceased. Plaintiff then applied for substitution of his name on the basis of the Power‑of‑Attorney and the Gov ernment defendant No. 6 after being fully satisfied about the genuineness of the plaintiff's claim allowed the substitution and entered into an agreement with the plaintiff in 1963 and sub sequently transferred the Mill and the Mill premises to the plaintiff by registered deed dated 9‑4‑

63. On 1‑7‑63 taking. advantage of the absence of plaintiff Manager the defendant forcibly broke open the locks of the Mills and took unauthorised possession of the same and were continuing possession illegally. On being informed of this act of dispossession on 2‑7‑63 plaintiff. came to Shibganj and tried in vain to pursuade defen dants Nos. 1‑5 to refrain from unlawful acts of possession. Defendants denied plaintiff's title and took a threatening attitude. Plaintiff then informed Police and after due enquiry Police recommended action under section 145 of the Code of Criminal Procedure but the Sub‑divisional Officer, Thakurgaon proceeded under section 144 of the Code of Criminal Procedure and illegally restrained the plaintiff from entering into the Mill premises. Plaintiff then moved the Deputy Commissioner, Dinajpur who by notice dated 14‑9‑63 and another notice delivered possession of the Mill to the plaintiff but without any success. Subsequently on 29‑2‑64 the Deputy Commissioner directed the plaintiff to seek his remedy through proper Court and the same notice issued by him was cancelled. The plaintiff in those circumstances prayed for appointment of a Receiver in respect of the suit property till disposal of the suit. The cause of action arose on 17‑2‑62 when Asghar executed an irrevocable Power‑of‑Attorney in favour of the plaintiff and on 1‑7‑63 when defendants broke open the locks. The elaborate defence in the written statement as filed by defendants Nos. 1‑3 and 5 was in substance that the suit was not maintainable. The suit was bad for multifarious ness and was barred by limitation; that the suit had not been properly valued; that the value of the property involved was about Rs. 1,50,000; that under East Bengal Act XIII of 1948, the Deputy Commissioner bad no jurisdiction to decide any question of right, title and interest in the requisi tioned or acquisitioned properties and that an industry requisitioned and acquired for one industrialist cannot be transferred to another and as such plaintiff acquired no right, title and interest to the Mill by virtue of the deed of conveyance executed by defendant No.

6. Plaintiff never possessed the suit property either as Attorney of Asghar or on his own behalf and that Asghar possessed the Mill from January 1951, and changed the name of the Mill to Asghar Rice Mill. It was Asghar who paid the acquisition cost of Rs. 49,946‑12‑0 from his own purse and spent a sum of Rs. 75,000.00 over the repairs and remodelling of the Mills and its premises and structures. Plaintiff did not in fact retire from service but was screened out in the year 1958‑

59. Asghar was never Zilader of the plaintiff and was never connected with the plaintiff Asghar was quite a substantial person and the question of his taking shelter under the plaintiff did not arise. Asghar came to East Pakistan soon after independence and before the posting of the plaintiff to Dinajpur in 1951, Asghar had a big stationery shop and grocery shop at Dinajpur and also had a rented house at Idgah Bustee. Plaintiff had no occasion to rendering any assistance to Asghar in the matter of the allotment of the Rice Mill to Asghar. It has been denied totally that it was through the assistance of the plaintiff that allotment of the Rice Mill was made to Asghar. It has been denied totally that it was through the assistance of the plaintiff that Asghar deposited Rs. 11,000 by taking loan from the plaintiff and that he took a further loan of Rs. 15,000 from the plaintiff. Plaintiff being a Police Officer with modest means, in the ordinary course it was impossible for him to ,have advanced such huge amount and that the plaintiff was not in the scene at the time of actual requisition and an acquisition of the properties and that it was not true that the compensation amount was revised at the instance of the plaintiff. It was not true that on persuasion of Asghar the plaintiff made further advances amounting to Rs. 39,000 and that Asghar gave any understanding to the plaintiff that he would transfer the said Mill to the plaintiff. The Power‑of‑Attorney, mentioned in the plaint was not a valid and genuine document and it was a forged and fabricated one. Asghar died on 18‑7‑62 and from long before that date he had been suffering from kidney and bladder troubles for which he had to undergo a major operation. Due to long suffering he was not in proper senses and was averse to worldly affairs at the relevant time. In that state of health he died within six months of the execution of the impugned Power‑of‑Attorney. Asghar did not know and understand English and that he could somehow sign his name in English. The deed was not read over or explained to him and he bad no capacity to understand the nature and contents of the deed. The document might have been obtained by fraud, coercion, undue influence and misrepresentation. He did not in fact execute or register any Power‑of‑Attorney in favour of the plaintiff. He was not properly identified before the registering authority. He was devoid of the capacity to act discreetly and prudently and that it was highly unnatural for Asghar to exclude his heirs from the only properties and assets he had on earth when he was himself on the brink of death. It was also not possible that a property worth Rs. 1,50,000 could have been agreed to be sold for Rs. 65,000 in all. The Power‑of‑Attorney as also void for execution and registration at Karachi because the properties were situated in East Pakistan. After the death of the principal the power of the agent comes to an end and so it does not authorise the acts, deeds and things done or caused to have been done by the plaintiff in pursuance of the said Power‑of- Attorney. It was not true that after the death of Asghar defendants were indebted and not in a capacity to run the Mill. The substitution of the name of the plaintiff in place of Asghar by defendant No 6 and subsequent agreement and deed of conveyance were all vitiated by fraud and misrepresentation. The defendants never forcibly broke open the locks of the Mills and there was never any breach of the possession. After the death of Asghar plaintiff began writing sympathetic letters to the defendants and tried his best to disturb the possession of the defendants but failed to oust the defendants due to timely action by local authorities and he also tried to forcibly occupy the Mills with Police force and the defendants had to file a writ petition before the High Court and the Deputy Commissioner was directed o rescind his order upon defendants to quit the Mills. By an additional written statement it has been denied that defendant No. 2 submitted any declaration before the Land Acquisition Officer, Dinajpur and admitted that the Mill was acquired with the plaintiff's money. Defendant No. 2 was a young boy with very weak intellect and if there was any such statement (meaning in Exh. 10) it was obtained from him by misrepresentation, coercion and fraud and it did not amount to an admission or acknowledgement and that, at any rate, defendant No. 2 had no authority to make any such declaration on behalf of all the heirs of Asghar. Defendant No. 6 filed a written statement in which they have stated that the Mill was requisitioned at first in the year 1951 and allotted to Asghar and then was acquired in the year 1957 and the total compensation was assessed at Rs. 49,429.88 paisa but the price in full was not paid in time. Subsequently, Lutfullah, the plaintiff deposited Rs. 5,334.06 as the balance towards the acquisition costs in 1962 and Mr. Lutfullah was recognised as transferee of the said Mill from Asghar, that Lutfullah having been transferee of the Mill the full acquisition costs were afterwards made by him. Plaintiff examined 5 witnesses including himself. Four witnesses were examined on behalf of the defendants respondents. On those facts, the learned Subordinate Judge found and held that the District Registrar, Karachi had no legal jurisdiction to register the document on 17‑2‑62 or 17‑10‑62 without notice upon the legal heirs of Q M. Asghar and that the Power‑of‑Attorney Exh. 1 was vitiated inasmuch as there was no legal proof that the document was presented by Asghar and that Asghar admitted execution and that Asghar was dead at the time of actual regist ration. He also held that this Exh. 1 was compulsorily register able inasmuch as the terms and conditions of the document showed primarily that it was an agreement for sale of Asghar Rice Mill by the principal to the agent for a consideration of Rs. 65,000 and that it was clearly assigned. The learned Subordinate Judge also considered the question as to whether such a document, which was void for want of proper registration could not confer any right upon the plaintiff on the basis of admission of late Asghar. His finding on this point was that although the signature appearing in Exh. 1 was not disputed as that of Asghar, it was not executed by him and that at any rate there was no independent and disinterested evidence to prove that the document was executed by Asghar with full knowledge about its contents and that it was a false admission of debt and contract to transfer the property to the plaintiff after ownership was transferred to Asghar by the Government, defendant No.

6. The learned Subordinate Judge also observed that even if a Power‑of‑Attorney was admissible even without registration the contents of the same required strict proof just as recitates in any other document, which according to him was not satisfied in the present case. In the result, the learned Subordinate Judge dismissed the plaintiff's suit, as above. Hence this first appeal before us. Mr. Fakhruddin G. Ibrahim, learned counsel, appearing on behalf of the appellant has urged that once the signature on the document is admitted the onus is entirely on the defendants- respondents to show physical infirmity of Asghar, or fraud, coercion and undue influence on the side of the plaintiff as alleged. He has urged that the learned Subordinate Judge has misplaced the onus on his client to prove that there was no fraud and that Asghar was in sound condition at the time of the impugned execution. He has also urged that the Court below was wrong in holding that the document Exh. 1 was one which was compulsorily registerable and that the District Registrar, Karachi was not competent to register the document. He has also urged that the contents of Exh. 1 find sufficient corroboration from Exh.

10. Once we are in a position to find that the document Exh. 1 was not voluntarily executed even though the signature is admit ted, the question of validity or invalidity of its registration itself and the question of its being corroborated by Exh. 10 and the question of compulsory registration as also the question of jurisdiction of the Karachi District Registrar become more or less academic. Before we take up the question of onus and voluntary execu tion on the part of Asghar which is the main point in the case, is will be sufficient to state that with regard to the other points, firstly as to whether the document was compulsorily registerable there are some decisions like that of Indar Singh v. Munshi and others (A I R 1920 Lah. 123), as pointed out by the learned counsel which seems to indicate that in the present case where the transfer to appellant was to take place after the vesting in the transferor, the document was not compulsorily registerable. It was held in that decision that an agreement by the reversioner of a holder of property to transfer a portion of it to the promisee after the vesting of the estate in the reversioner, does not require registration and it was observed that "the executant's rights in the property were only to come into existence after that and the agreement was only to transfer a moity of such rights when they came into existence, that is, after the death and the agreement was that in the nature of an agreement to transfer and its registration as such was not compulsory". So far as jurisdiction of the Karachi District Registrar goes the learned Subordinate Judge seems to be clearly wrong inasmuch as, as pointed out by the learned counsel, the Karachi District Registration Act, 1908, was amended by the Act 1 of 1958 (being Registration Amendment Act, 1957) by virtue of which the Registrar, Karachi was quite competent to register the document. The said amendment in section 2 thereof reads : In subsec tion (2) of section 30 of the Registration Act, 1908, for the words "The Registrar of the Dacca District" the words and comma "the Registrar of the Karachi District, the Registrar of the Dacca District" shall be substituted. So far as corroboration by Exh. 10 goes the very terms of Exh. 10 are such as to indicate that D. W. 2 could not have written on his own in that fashion in the matter of receipt of Rs. 65,000 by his deceased father. The very style of the writing shows that it could not be that of defendant No. 2 who was rather young and of poor intellect and that he was made to lend his signature to a document which was copied by him from a draft given to him by Syeduzzaman. Moreover, his admis sion in that document could not bind the other successors of Asghar. The deed, Exh. 1 by itself is rather out of the ordinary. There is nothing to show on the document itself that it was read over to the executant nor is it very clear as to whether the document was presented by Asghar himself. The document was presented on 17‑2‑62 and finally admitted to registration on 16‑10‑62, which is merely three months after the death of Asghar on 18‑7‑62, and that too without legal notice to the heirs of late Asghar. One endorsement on the document which was impugned shows that deficit registration fee of Rs. 330 was received on 9‑11‑62 and another endorsement thereon shows that deficit registration fee under section 30 (2) of the Act was paid on 23‑10‑62, that is, in both cases after the document was admitted to registration on 16‑10‑

62. It appears also that a copy of the self same document Exh. 1 was used for convincing the local authorities about the bona fides of the proposed transfer to the appellant before the document was admitted to registration on 16‑10‑

62. The document, of Exh. 1, dated 17‑2‑62 came into existence within 6 months of the Exh. B another agreement between Asghar and appellant dated the 23‑8‑61 in which it has been stated that the loan of Rs. 15,000 as shown by that document was the last and only against the Mill. The appellant sought to withhold this Exh. B and the opposite‑party had to come to this Court to get it included. By this Exh. B, a partnership between the appellant and Asghar in the matter of the Rice Mill was sought to be created for a total costs of Rs. 50,000, Rs. 15,000 paid immediately and the other Rs. 35,000 to follow. It may be mentioned that in this document Exh. B appellant made a condi tion that Asghar shall not take any loan or in any way enter into any agreement for mortgage or sale or any other transfer of the said Mill without written permission of the appellant while by Exh. 1 the proprietorship of the whole Rice Mill was sought to be changed in favour of the appellant for Rs. 65,000 while the value of the partnership alone, as per Exh. B, was Rupees fifty thousand. Between the time of 23‑8‑61, that is, the date of Exh. B, by which Rs. 15,000 was paid to Asghar as the last and only loan and the date of Exh. 1, that is, 17‑2‑62, there is no evidence of any other payment to Asghar by the appellant. At one jump the figure of Rs. 15,000 has risen to Rs. 65,000 in Exh.

1. The sum of another Rs. 15,000 as received by late Asghar under Exh. 9 was on 19‑2‑62 which was two days after the execution of Exh.

1. Late Asghar was not keeping good health and deeply worried financially as he was finding it hard to meet the demands of the Land Acquisition Authorities. Exh. 20 shows that Asghar was in rather tight position and had been taking time for balance payment to the Government and the dead line was fixed at 31‑4‑

61. The first act which was required to be done by the appellant under the impugned Exh. 1, was to take steps for transfer of the Mill to Asghar by the defendant No. 6 the Government of East Pakistan whereas it appears from Exh. 20 certified copy of the order‑sheet that only from 29‑9‑62 one Saiduzzaman, Attorney of the appellant got going in the matter and for the first time deposited Rs. 5,334.06 paisa on the said date, viz., on 29‑9‑62 as execution cost. A petition for mutation was also submitted. Activity became brisk only after the death of Asghar and nothing was done to implement Exh. 1, during the lifetime of Asghar which lasted up to 18‑7‑

62. There is also the question as to how the appellant could have advanced so much money he being a Superintendent of Police who was screened and not yet in receipt of pension as submitted by the learned counsel. No bank papers have been produced. The evidence also shows that the respondent bad settled at Dinajpur before the appellant was posted there in 1951 and there is no evidence except that of the appellant himself that he helped Asghar to stand on his legs far from there being any evidence that Asghar was a man of straw who was raised from the dust by the plaintiff. Plaintiff must prove his case. The plaintiff claimed intimate personal relationship with late Asghar but he failed to prove that fact. He also failed to prove his case that at his instance the Mill was allotted to Asghar who was also given Rs. 11,000 by the plaintiff to run the Mill. In spite of amendment of the plaint which was done long after one year on 2‑9 65 wherein it was stated that the advances were made directly by the plaintiff in cash, by bank drafts and also through the plaintiff's sister's son Kazi Mazharul Huq, no evidence was brought before the Court in support thereof. Exh. 1, came into existence as a result of the distress and helpless condition of Asghar created by Ex h. B. Exh. 1, is not a document of transfer by itself. So naturally Asghar was not worried by its existence as he received Rs. 15,000 to run the Mill as per Exh.

9. It may be that Asghar took Exh. 1 as a deed of partnership. The contents of Exh. 1, having not been read out and explained to Asghar and in the absence of any evidence to the effect that Asghar came to know of his title being finally extinguished in pursuance of Exh. 1, there is sufficient room for doubt if Asghar at all understood the implications of the deed. There is one other feature of the case. Exh. 1, was created on "Legal advice" as stated in paragraph 10 of the plaint and the prayer which is paragraph 27 runs thus: ‑ "27 (a) That it be declared that the plaintiff is the 16 annas exclusive proprietor of the Mill, machineries and Mill premises detailed in the Schedule of the plaint to the exclusion of others." The words "exclusive," and "exclusion of others" give indi cation of the existence of Exh. B, which the plaintiff disowned and wanted to suppress and later sought to explain away without success, as no reasonable man could execute Exh. 1 after Exh. B. Circumstances such as those lead us to doubt the very integrity of the document Exh.

1. Although the onus is strictly on the defendants to prove fraud and undue influence and coercion in the face of the admitted signature of Asghar on the document, we cannot in the mere absence of oral evidence on the subject hold that the case of fraud, coercion and undue influence had not been made out at all in the circumstances as disclosed and divulged, particularly, when the executant is dead. Asghar a man of failing health with financial worries reduced himself to a puppet. In those circumstances, we find that the plaintiff has miser ably failed to make out his case on the basis of Exh.

1. So far as the legality of the mutation effected by respondent No. 6 in favour of the appellant vide Exh. 20, goes sufficient to state that this is merely an executive order which cannot confer title on the appellant. In the result, we dismiss the appeal. 1n the facts and circumstances of the case, however, we make no order as to costs. The connected Rule is discharged without any order as to costs. MAHMUD HUSSAIN, J.‑I agree. Appeal dismissed.