MD. SHAH ALAM Vs. MD. ISLAM

JUDGEMENT

(1.) This appeal by leave arises out of the judgment of a Single Bench of the High court division dated 7.8.1994 in civil Revision no. 1806 of 1991 making the rule absolute thereby setting aside the judgment and decree dated 16.9.1985 passed by the learned Subordinate Judge, 1st Commercial Court, Chittagong in Other Appeal No. 475 of 1985 and affirming the judgment and decree dated 27.6.1989 passed by the Munsif 2nd Court, Chittagong Sadar in Chittagong dismissing the Suit.

(2.) Mrs. Fatema Khatun (now dead), the mother of the appellant instituted the above Other Suit No. 247 of 1978, where in the respondent No.1 and the appellant were impleaded as pro forma defendant Nos.1 and 2 respectively. Praying for a declaration that the agreement of compromise dated 20.7.64 as well as the compromise decree passed on 11.6.64 in Other Suit No.75 of 1963 of the 2nd Court of Munsif, Sadar, Chittagong had been obtained fraudulently by respondent No. 1 in Collusion with his accomplice, Abdul Mabud Sawdagar (since dead) and those are not binding upon her and also upon the pro forma defendant No. 2 and her interest had not been affected in any way thereby, stating inter alia that respondent No.1 is her son by her first marriage with one Md. Ishaque; the properties described in the schedule of the plaint belonged to her father Abdul Gani Chowdhury who died leaving Amena Khatun (wife) and her (daughter) as his only heirs; after the death of her first husband she married late Mvi. Md. Mostafa with whom she lived in her paternal house and two sons, one being dead and the other being the appellant and one daughter were born out of her second marriage after the death of her second husband, she continued to live in her paternal house with her three children the respondent No. 1 who was by then an adult grew inordinately worldly minded and he by practicing fraud upon her and Amena Khatun, Secured the execution and registration of two deeds of gift dated 31.1.41 and 1.5.51 shown to have been executed by her and Amena Khatun and she and Amena Khatun remained ignorant of the contents there of after corning to know about the two deeds of gift dated 31.1.41 and 1.5.51 she and Amena Khatun nullified the said deeds of gift by a registered deed of revocation dated 10.2.56 and she continued to keep in her possession all her inherited properties when she sold part the properties described in the schedule of the plaint to the appellant by a registered Kabala dated 23.12.62 the respondent No.1 instituted O.S. No. 75 of 1963 against her laying claim to a part of the said properties on the basis of the nullified deeds of gift dated 31.1.41 and 1.5.51 at that time one Abdul Mabub Sawdagar who was closely related to both the parties, offered his services for effecting a compromise and in complete reliance upon him, she put her L.T.I on some blank sheets of paper upon the representation of the said Abdul Mabud Sawdagar to the effect that those would be required for effecting the compromise and later on she was also told that a compromise had been effected on the terms that the respondent No.1 would admit her ownership and khas possession on the properties of the Suit and that she would give some land to respondent No.1 as she thought fit later on it transpired that a compromise decree was passed in the said suit on the terms that the two deeds of gift dated 31.1.41 and 1.5.51 were valid and hence the suit.

(3.) The respondent No. 1 contested the suit and filed written statement stating inter alia that it was the appellant who by means of a false thumb impression in the name of Fatema Khatun instituted the above sit the suit was barred by limitation both the deeds of gift and also the compromise petition were read over and explained to Fatema Khatun and she after knowing the contents put her thumb impression on these and no fraud was practiced upon Fatema Khatun as alleged.