BAIDYA NATH DUTT Vs. ALEF JAN BIBI

JUDGEMENT

(1.) The subject matter of the litigation which has culminated in this appeal is landed property situated in the eastern suburb of this city The property belonged originally to one Mather Ostagar whose name appears in the following pedigree:

(2.) On the 14 January 1857 Ostagar transferred the property to his wife, Karimannessa, in lieu of dower, by, a document described as a hiba-bil-ewaz (gift for an exchange). On the 26th June 1899 a conveyance of the property is said to have been executed by Karimannessa to her grand-daughters Asia, and Sufia. Whether his deed was in fact executed by Kar man nessa and, if so, whether it was voluntarily executed by her, are matters in controversy in this litigation. It is sufficient to mention at this stage that the document was registered on the 26th July 1899. On the 22 March, 1900 Asia was, on her application, appointed by the District Judge as guardian under the Guardians and Wards Act, 1890, to administer the estate of her infant sister, Sufia, during her minority, which, it was stated in the certificate, would continue until the 13 December 1906. On the 16 May, 1900, Asia applied to the District Judge for permission to sell the half share of the infant in the disputed property. On the 19 June 1900 Karimannessa filed a petition of objection, stating that neither Sufia nor the petitioner had title to the house and land and that Sufia was not an infant when Asia was appointed her guardian. The District Judge overruled the opposition and granted permission to Asia to sell the property on behalf of her ward. On the 14 September 1900 Asia informed the District Judge that she had not been able to secure a purchaser and asked for permission to raise money by mortgage of the property. This application was granted. Subsequently, a purchaser was found and on the 22 December, 1900 the District Judge sanctioned a sale instead of a mortgage. These proceedings show that the transfer was effected with a view to pay marriage expenses, of the minor and debts and costs of litigation. A conveyance, which appears to have been drawn up on the 21 December 1900,in anticipation of the sanction of the District Judge, was thereupon executed by Asia for herself and as guardian of her sister, Sufia, and the entire interest of the two sisters was transferred to the purchaser, Muhammad Manatumbi, the brother do Abdul Kader, (the husband of Asia). The conveyance was registered on the 3rd January 1901.The endorsement of the Registrar shows that the registration took place in the very house which stands on the disputed land where the two ladies resided. The oral evidence makes it abundantly clear that the old lady Karimannessa also lived in the same house at that time. The property thus purchased by Muhammad Manatumbi was subject to the payment of Government revenue. He accordingly paid such revenue to the Collector on the 13 March 1902, though, even after his purchase the names of his vendors were registered by the Collector on the 13 September 1901, and on the 24 March, 1902, he paid a further sum to the Collector as redemption fee, so that the land might thenceforth be revenue-free in perpetuity. On the 5 April 1902 the Collector issued the usual redemption certificate to Manatumbi. Meanwhile, Manatumbi had, on the 6 November 1901, taken a kabuliyat from one Golam Rahman, who occupied a part of the premises as tenant. The evidence further leaves no room for doubt that Manatumbi got his name registered in the books of the Calcutta Corporation the rate bills were thereupon issued in his name and were paid by him. His name was, as we have seen already, registered in the books of the Collector, and the notice was served on him on the 26 March 1908. when the number of the holding was changed after the survey of the City by Mr. Smart, (sic), 1909 Manatumbi brought a suit against Golam Rahman, who had attorned to him, for recovery of arrears of rent for the period between October 1903 a June, 1909. Golam Rahman, notwithstanding that he had executed and registered the labuliyat, denied the relationship of landlord and tenant, and asserted that he held as tenant under Karimannessa as his landlord. Karimannessa was not joined as a party to the suit, but she was examined as a witness on behalf of the tenant defendant. She denied that she had conveyed the land and house to any one or that she had gone to a registration office to create a document. She admitted, however, that Abdul Kader had realised rent from the tenants and had asserted for 10 or 12 years that he had purchased the house. The Trial Court declined to accept her version and held that the then plaintiff had established his purchase and attornment by the then defendant. The result was that the rent suit was decreed on the 17 December 1909. Manatumbi, thus secured in his possession of the property, executed a conveyance in favour of Abdul Kader on the 30 March 1980, who, in his turn, mortgaged the property to the present plaintiff on the 7 July 1910, as security for a loan of Rs. 2,600. On the 27 June 1911 Karimannessa instituted a suit against Abdul Kader for cancellation of the successive instruments of transfer, for establishment of her title, and for recovery of possession. She repudiated the conveyance, dated the 26 June 1899, in favour of her granddaughters Asia and Sufia as a forgery and without consideration. She also challenged the conveyances executed by Asia and Sufia on the 22 December, 1900 in favour of Manatumbi, and on the 30 March 1910 by Manatumbi in favour of Abdul Kader as collusive documents. The Subordinate Judge held, as regards her own conveyance, that it had not been executed and registered by her. He further held with regard to the conveyances by Asia and Sufia and by Manatumbi that they represented fictitious transactions without consideration. In this view, the suit was decreed and a declaration was made to the effect just indicated. It was found in this litigation that at that period Karimannessa lived in the house along with her daughter, her grand-daughters and her grandson-in-law. On the 59 January 1915, the present plaintiff sued to enforce his security and joined-as defendants the mortgagor as also Karimannessa and two puisne encumbrancers who derived title under a mortgage said to have been executed by her on the 3 January 1914. Karimannessa took up the position that the mortgagor of the plaintiff had no title to the property. As she thus claimed a title paramount, the Court held, on the authority of the decision in Jaggeswar Dutt V/s. Bhutan Mohan Mitra 33 C. 425 : 3 C.L.J. 205 that Karimannessa and the mortgagees from her were not necessary parties to the suit. Their nemeses were accordingly removed from the fecokl, and the suit was decreed. When execution was taken out, however, Karimannessa attempted to intervene on the 10 March 1917. The Court directed that her petition of objection might be read out at the time of sale. The result was that no bidders ventured to compete, and the mortgagee decree-holder became purchaser for the sum of Rs. 250. The purchaser was, however, unable to obtain actual possession, and. instituted the present suit on the 28 November 1918 to recover the property on declaration, of title. He joined as defendants Karimannessa, the two mortgagees from her, as also. Abdul Kader, Karimananssa died two days after the institution, of, the suit, and on the 7 December 1.918 her daughter, Alef Jan, was substituted in her place by order of Court. The defendants resisted the claim on the ground that Karimannessa did not execute and register the conveyance of the 20 June 1899 in favour of her grand-daughters Asia and Sufia, that the successive conveyances in favour of Manatumbi and Abdul Kader were fictitious transactions without consideration, and that the mortgage which was the not of the title of the plaintiff did not affect the disputed property. The Subordinate Judge has round that the conveyance, dated the 26 June 1899, by Karimannessa to her grand-daughters, Asia and Sufia, the conveyance dated the 21st December 1900 by Asia and Sufia to, Manatumbi, and tie conveyance, dated the 30 March, 1910, by Manatumbi to Abdul Kader were genuine documents, but they represented, paper transactions. as there was no real sale no payment of consideration in any instance. The Subordinate Judge has also found, that the plaintiff took the mortgage in good faith from Abdul Kader and paid the full consideration thereof. But the Subordinate Judge has held that as the title remained throughout in Karimannessa, the mortgage held by the plaintiff was inoperative, and he was not entitled to the protection afforded by a Court of Equity to a bona fide purchaser for value without notice. On the present appeal, the plaintiff has contended that the successive transactions were not fictitious but genuine, and that, in any event the defendants were not competent to set up in alleged unreality to his detriment. The defendant has impugned the conclusion of the Subordinate Judge that the conveyance by Karimannessa to her grand-daughters was genuine it has been strenuously argued that the document was a forgery and that recourse was had to false personation before the Registrar. Apart from this, the respondent has supported the view taken by the Subordinate Judge. The substantial questions which thus emerge for consideration are, first, was the conveyance by Karimannessa a forged document; secondly, were the successive Sales fictitious transactions without consideration; and thirdly, was the mortgage in favour of the plaintiff unimpeachable as held by a bona fide purchaser for value without notice.

(3.) As regards the first point, the Subordinate Judge has held that the conveyance which is alleged to have been executed on the 26 June 1899 by Karimannessa in favour of Asia and Sufia is a genuine document. The attesting witness, Abdulla Khan, has been examined on behalf of the plaintiff. The Subordinate Judge has accepted his testimony that the document was in fact executed by Karimannessa. The scribe Syeduddin Ahmad, his son Muhammad Ahmed who became an attesting witness, and Daulat Khan, a third attesting witness, are all dead, while Alef Jan, as might have been anticipated, denies that she became an attesting witness. We are not able to hold, in these circumstances, that the Subordinate Judge should not have acted on the evidence of Abdulla Khan. But it has been urged that great suspicion attaches to the document by reason of the diversity between what purports to have beet the thumb impression of Karimannessa taken in the registration book on the 26tn July 1899, as compared with specimens of her thumb impression taker in Court on the 16 July 1914, while her suit against Abdul Kader was in progress. The Subordinate Judge has held that the alleged difference is not of such a character as to justify an inference against the genuineness of the document, and, in his opinion, the evidence of the finger-print expert was by no means conclusive. We are not prepared to dissent from the view expressed by the Subordinate Judge, specially as no comparison is possible with the thumb impression on the original document which, was lost, on the 6 July 1900. Although finger prints sometimes afford valuable evidence of identity as in R. V/s. Castleton (1909) 3 Cr. App. Rep. 74 as was pointed out in the cases of Queen-Emforess V/s. Fakir Mahomed 1 C.W.N. 33 and Emperor V/s. Abdul Hamid 9 C.W.N. 520 : 32 C. 759 : 2 Cr. L.J. 259 great caution must be exercised in arriving at a conclusion by a comparison of thumb impressions, and the positive evidence of witnesses who were undoubtedly present and were eye-witnesses to the transaction should not be lightly brushed aside. There is, besides, in the present case a real difficulty in the way of acceptance of the theory that the document was forged, because no plausible hypothesis has even been suggested as to who could have engineered the forgery and for whose benefit. In this connection, we cannot overlook that although the judgment in the suit, by Karimannessa against Abdul Kader, is admissible in evidence under Section 13 of the Indian Evidence Act, the findings contained therein cannot be treated as part of the evidence in this case. As was explained in Kasi Nath Pal V/s. Jagat Kisore Acharjee 35 Ind. Cas. 298 : 23 C.L.J. 583 : 20 C.W.N. 643 and Tripurana Seethapati Rao Dora V/s. Rokkam Venkanna Dora 66 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, it is hot the correctness of the previous decision, but the fact that there has been a decision, that is established by the production of the judgment. This is clear from the decisions of the Judicial Committee in Ram Ranjan V/s. Ram Narain Singh 22 I.A. 60 : 22 C. 533 : 5 M.L.J. 7 : 6 Sar. P.C.J. 530 : Ind. Dec. (N.S.) 355 (P.C.), Bitto Kunwar V/s. Kesho Prasad 24 I.A. 10 : 19 A. 277 : 7 Sar. P.C.J. 131 : 1 C.W.N. 265 : 9 Ind. Dec. (N.S.) 181 (P.C.), Dinomoni Chowdhrani V/s. Brojo Mchini Chowdhrani 29 I.A. 24 : 29 C. 187 : 6 C.W.N. 380 : 12 M.L.J. 83 : 4 Bom. L.R. 167 : 8 Sar. P.C.J. 224 (P.C.), Rum Parkash Dms V/s. Anani Das 33 Ind. Cas. 583 : 43 I.A. 73 : 43 C. 707 : 24 C.L.J. 116 : 20 C.W.N. 802 : 14 A.L.J. 621 : (1916) 1 M.W.N. 406 : 31 M.L.J. 1 : 18 Bom. L.R. 490 : 3 L.W. 556 : 24 C.L.J. 116 : 20 M.L.T. 267 (P.C.) and Natal Land and Colonisation Co. V/s. Good (1868) 2 P.C. 121 : 5 Moo. P.C. (N.S.) 132 : 16 W.R. 1086 : 16 E.R. 465, and of the House of Lords in Malcomson V/s. O Dea (1863) 10 H.L.C. 593 : 9 Jur. (N.S.) 1135 : 9 L.T. 93 : 12 W.R. 178 : 11 E.R. 1155 : 130 R.R. 317 and Bestow v. Cormican (1878) 3 App. Cas. 641. This fundamental distinction was not fully appreciated in the Court below, and references were made to the findings in the judgment in the previous (sic) as if they were a kind of inconclusive res ad judicata, while the essence of the matter is that it is not the correctness but the fact of the decision which is relevant. On the whole, we see no reason to depart from the view adopted by the lower Court that the document was genuine, that is, was executed and registered by Karimanensssa, but that no real sale was intended to be effected. There is much to be said in favour of the theory that Karimannessa, under the advice of Abdul Kader and possibly also of Alef Jan, placed the property in the names of her two grand-daughters, so as to check his grandson, Mujibar Rahman, who had taken to wild habits and evil ways.