KAZI ABDUL LATIF Vs. KAZI ABDUL HUQ

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for recovery of possession of land upon establishment of title by inheritance. The property admittedly belonged at one time to Aber Kazi. The case for the plaintiff is that Aber Kazi (his father) remained the owner of the property till his death in 1907 and that consequently he is entitled to a share by right of inheritance. The plaintiff, however, is met by a conveyance which was executed by his father on 8 July 1905 in favour of the seventeenth defendant who was the wife of Aber Kazi and step-mother of the plaintiff. The conveyance recites that dower debt was due to the lady and that as the executant was not in a position to pay her in cash, the only course left open to him was to transfer to her the properties covered by the deed. If this document represented a real transaction, Aber Kazi ceased to be the owner of the disputed properties before his death, and the plaintiff cannot succeed on the basis of title by inheritance. The essential question for consideration, consequently, is, whether this conveyance did or did not represent a real transaction. Upon this point, the Courts below have come to divergent conclusions. The Court of first instance held that the conveyance represented a real transaction and dismissed the suit. Upon appeal, the District Judge lias taken a different view and decreed the suit. We are of opinion that the decision of the District Judge cannot be supported.

(2.) In the first place, the District Judge has adopted the very course which was condemned by the Judicial Committee in Mina Kumari Bibi V/s. Bijoy Singh Dudhuria 40 Ind. Cas. 242 : 44 I.A. 72 : 44 C. 662 : 21 C.W.N. 585 : 1 P.L.W. 425 : 5 L.W. 711 : 32 M.L.J. 425 : 21 M.L.T. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424; (1917) M.W.N. 473 (P.C.), where Sir Lawrence Jenkins observed that though incases of alleged benami transactions, there may be ground for suspicion, yet the Court's decision must rest not upon suspicion but upon legal grounds established by legal testimony. In cases of this character, the determination of the question must depend not merely upon direct oral evidence, but also upon circumstances, such as the source of the purchase-money, the possession of the disputed property, the custody of the title-deeds, the adequacy of consideration and like facts. The District Judge has not approached the case from this point of view, nor has he given effect to the principle enunciated by the Judicial Committee in Suleiman Kader Bahadur V/s. Mehndi Begum 25 I.A. 15 : 25 C. 473 : 2 C.W.N. 186 : 7 Sar. P.C.J. 254 : 13 Ind. Dec. (N.S.) 313, where Lord Davey stated that the burden of proof lies on the person who claims against the tenor of the deed. The plaintiff seeks in substance a declaration that the deed executed by his father was fictitious. There is a recital in the document that dower debt was due to his wife. There is no reason why that statement should not be taken as prima facie true [Irshad Ali V/s. Kariman 46 Ind. Cas. 217 : 22 C.W.N. 530; (1918) M.W.N. 394 : 21 O.C. 86 : 5 O.L.J. 197 : 28 C.L.J. 173 : 20 Bom. L.R. 790 : 24 M.L.T. 86 (P. C). But it may be established to be false, and it may also be possible to prove that the conveyance was never intended to transfer the title. That, however, is a question to be determined upon evidence, which cannot be disposed of upon general observations as to the possibility of fraud in cases of this character or as to the extreme probability of a collusive sale to the wife by a person who was not in affluent circumstances. One of the facts relied upon by the plaintiff is that his father was in debt at the time of this transaction. The District Judge has not referred to the evidence Avhich bears directly upon this point; but his judgment mentions a decree which was obtained by a creditor against the father of the plaintiff after the execution of the conveyance. The decree itself has not been produced, and we are not able to find from the record when the decree was made. The Courts below further appear to have gathered information from a judgment in a suit, which was instituted by the present appellant against a creditor, for the cancellation of an order dismissing a claim preferred in execution proceedings. But the recitals in that judgment are not admissible in evidence. The fact that a judgment is admitted in evidence in order to prove that there was litigation which terminated in a certain way, does not make all the recitals in that judgment part of the evidence in the subsequent action; Kashi Nath Pal v. Jagat Kishore Acharya Chowdhury 35 Ind. Cas. 289 : 20 C.W.N. 643 : 23 C.L.J. 583 and Tripurana Seethapati Rao Dora V/s. Rokkam Venkanna Dora 63 Ind. Cas. 280 : 42 M.L.J. 324 : 15 L.W. 316 : 30 M.L.T. 160; (1922) M.W.N. 147 : 45 M. 332; (1922) A.I.R. (M) 71 (F.B.). The Dis trict Judge has further overlooked that this very judgment was set aside by consent of parties; that makes it still more difficult to refer to the recitals therein. We are of opinion that this case has not been Considered from the correct stand point and that the judgment of the District Judge is erroneous in law.

(3.) The result is that this appeal is allowed, the decree of the District Judge set aside and the case remanded to him for re-sonsideration. The District Judge will be at liberty to permit the parties to adduce fresh evidence to be taken either by himself or by the primary Court, if he considers such a course necessary in the interest of justice. Costs will abide the result.