APPEAL FROM ORIGINAL DECREE NO.51 OF 2003 (In the matter of an appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 10.2.2003 passed by Sri Jagannath Rai, Subordinate Judge, VII, Motihari, East Champaran in Title Suit No. 125 of 1994/186 of 2002) --------- 1. SK.AZIMUR RAHMAN 2. Sk. Mozibur Rahman, both sons of Late Abdul Hafiz, residents of village- Pachpokari Tola Murli, P.S.- Pachpakari, District- East Champaran ------- APPELLANTS VERSUS R-1(a) Nurul Hoda, son of late Sk. Farman, resident of village- Hiramma, P.O.-Hiramma, P.S.- Taregni, District- Sheohar R-1(b) Shafi Ahmad Siddiqui, son of late Sk. Farman, resident of Mohalla- Maripur, P.S.- Kazi Mohammadpur, District- Muzaffarpur. 2 Sk. Shamshad Ahmad, son of Sk. Jamaluddin, resident of village- Pachpakari, Tola- Murli, P.S.- Dhaka, District- East Champaran. 3. Bibi Zaifa Khatoon, wife of late Sk. Abdul Kudus, resident of village- Amwa, P.S.- Pipradih, District- Sheohar (Sitamarhi) ------ Respondents For the Appellant :- Mr. Raghib Ahsan, Senior Advocate For the Respondent:- Mr. A.B. Mathur, Senior Advocate ------------ P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN Sheema Ali Khan, J. The defendants have filed this appeal before this Court. The suit has been filed for a declaration that the deed of gifts 12 in numbers dated 24.11.1992, 25.11.1992 and 27.11.1992 be declared as forged and fabricated and it should 2 be held by the Court that the said deed of gifts were never acted upon and are not binding on the plaintiff. The relationship between the parties is that Ainul Haque had three children, Sheikh Abdul Aziz (the original plaintiff), Sheikh Abdul Hafiz and a daughter Zaifa. Sheikh Abdul Aziz died on 26.8.1994 after filing of the suit leaving his widow Shakila Khatoon and his brother sons S.K. Azimur Rahman (defendant no. 1) and S.K. Mozibur Rahman (defendant no.2). Shakila Khatoon was transposed as a plaintiff by order dated 14.9.1994 of the Court below. The plaintiff‟s case is that he had separated from his brother and he alongwith his wife were living separately for the past 38 years. It has been stated in the plaint that in the year 1990 he had executed an Ekrarnama dated 15.6.1990 in favour of his wife before going for Haj. The said Ekrarnama was executed in lieu of dowar debt and it has been stated in the deed aforesaid that after returning from Haj, he would execute a registered deed in favour of his wife with respect to 4 Bighas of land. The plaintiff Abdul Aziz after returning from Haj fell ill and 3 for one reason or the other he could not execute the said registered deed in lieu of the dowar debt. The plaintiff claims that he remained unwell since 1990 and he had to get himself treated at his village home at Dhaka, Muzaffarpur, Motihari and Nepal. In fact, he had to take treatment at Darbhanga and had to remain away from his village for about 2½ months. It is the specific case of the plaintiff that he needed money and for this reason he asked his friend, who is a doctor, to look for purchasers for his land. At that time he came to know that several deed of gifts have been created by the defendants in their favour which has been registered on 24.11.1992, 25.11.1992 and 27.11.1992. The plaintiff also claims that two gift deeds have been created in favour of his wife in order to make the entire transaction appear genuine, therefore it became necessary for the plaintiff to file this suit for setting aside the deed of gifts executed in favour of the defendants. Two sets of written statements have been filed. The first one by the defendants 1 and 2 i.e. the sons of Abdul Hafiz brother of the 4 plaintiff and the other by the sister of the plaintiff Zaifa Khatoon. The case of the defendants 1 and 2 is that the suit has not been filed by the Abdul Aziz rather by the wife and the brother in law (sala) of Abdul Aziz who had forged the signature of Abdul Aziz on the plaint and the Vakalatnama and filed the present suit. These defendants denied the case of the plaintiff that the defendants 1 and 2 were very close to the plaintiff because Abdul Aziz did not have any children, he used to treat them like his own sons, and gift deeds had been executed in favour of defendant numbers 1 and 2 out of love and affection for them. The case has actually been filed by Shakila Khatoon with the help of her brother. The defendants specifically states that the gift deeds were executed on different dates i.e. 24.11.1992, 25.11.1992 and 27.11.1992 by Abdul Aziz who was in his senses and well enough to execute the said deeds of gift. By virtue of the deed of gifts executed by Abdul Aziz the defendants 1 and 2 came into possession of the lands and after coming into possession the defendants 1 and 2 have divided the gifted 5 property amongst themselves and are enjoying the lands gifted to them. It is further stated that the plaintiff had also executed a registered deed of gift in favour of Shakila Khatoon on 27.11.1992 and Shakila Khatoon had come into possession of the said gifted land. The defendants also challenge the Ekrarnama dated 15.6.1990 which has been executed by the original plaintiff in favour of Shakila Khatoon in lieu of dowar debt. The defendants denied the allegation made in the plaint that the gift deeds are forged and fabricated documents rather according to them they are genuine deed of gifts which have been acted upon and the defendants are enjoying possession of lands gifted to them. Zaifa Khatoon supports the case of the plaintiff and also challenges the gift deeds executed in favour of the defendants on the ground that they are forged and fabricated. The Trial Court has based his finding on the report of the Expert and came to a finding that the deeds of gifts are not genuine. The Court has also rather surprisingly held to the contrary that the deeds of gifts executed by Late Azimur Rahman in favour of his wife are genuine 6 and further stepped beyond the pleadings to hold the unregistered Ekrarnama by which lands were transferred by Azimur Rahman in favour of his wife is binding on the parties. I shall discuss the finding of the Trial Court as I proceed with this judgment. The only question to be decided by this Court in this case is whether the signature/L.T.I. on the gift deed of Sheikh Abdul Aziz are genuine. I may state here that Shakila Khatoon died on 20.7.2005 and her brothers have been substituted as her heirs by the order dated 18.4.2006 of this Court. Before going any further it would be relevant to state here that the dates of alleged deeds which are under consideration of this Court. The first deed executed by Sheikh Abdul Aziz was on 15.6.1990 just before he went for “Haj”. This Ekrarnama is unregistered document in which it has been stated that 4 Bighas of land described in this deed have been gifted to Bibi Shakila Khatoon in lieu of her dower debt which was Rs. 10,000/-. The other documents which have 7 been executed are gift deed nos. 13777, 13789, 13795, 13798 and 13805 dated 24.11.1992 and gift deed numbers 13860, 13870, 13872 dated 25.11.1992 and gift deed numbers 13969 and 13972 dated 27.11.1992. It is said that on the said date one of the gift deed was in favour of Bibi Shakila Khatoon with respect to 2 Bigha of land. It is also the case that the land given to Shakila Khatoon by Bai Mokasa came in her possession which is described in Schedule-II of the written statement. The land gifted by registered deed to Bibi Shakila by Abdul Aziz which is dated 27.11.1992 measuring 1B 1K 7D is defined in Schedule-III of the written statement. Therefore, according to the defendants Bibi Shakila Khatoon was gifted 18K 14D by way of a registered Bai Mokasa executed on 25.11.1992 and 1B 1K 7D by a registered deed dated 27.11.1992. The contention of the plaintiff is that all the gift deeds except a gift deed in favour of Shakila Khatoon are forged and fabricated documents. The Bai Mokasa in favour of Shakila Khatoon has not been challenged by the plaintiff. It may be noted here that the plaintiff no.1 was late Abdul Aziz whereas the defendant no. 3 was 8 Shakila Khatoon. Thus One of the contentions raised on behalf of the defendants is that although the suit was filed on 5.7.1994, the plaintiff no.1 did not appear although the matter was posted on several dates before the trial court and finally he died on 9.9.1994 and Shakila Khatoon was transposed as plaintiff by order dated 9.9.1994. It is submitted that the signature of Abdul Aziz on the plaint is not genuine and the entire case has been managed and set-up by the brothers of Shakila Khatoon with a view to grab the properties of the said Abdul Aziz. The reason is that under the Mohammedan Law the brothers would inherit the property of the sister. It has been pointed out by the counsel for the defendants that the plaintiff do not challenge the gift deed, and Bai Mokasa executed by late Sheikh Abdul Aziz in favour of his wife Shakila Khatoon although the documents were executed on or about the same date as the gift deeds executed in favour of the defendant appellants on 25.11.92 and 27.11.1992. The defendants on the other hand submit that the deeds are genuine executed out of love and affection as Sheikh Abdul Aziz did not have any 9 heirs. It is stated that Sheikh Abdul Aziz made provisions for his wife by executing a Bai Mokasa and a gift deed in her favour. The defendants state that Ekrarnama executed in lieu of dower debt has to be a registered document, and as such, the Ekrarnama does not clothe the plaintiff Shakila Khatoon with any title to the said lands which are described in Ekrarnama. The Ekrarnama , however, has not been challenged in the suit but the trial court has come to a finding that late Shakila Khatoon is entitled the lands that have been transferred by way of the said Ekrarnama dated 15.6.1990. The trial court on considering the evidence and the opinions of the handwriting experts has come to the conclusion that the gift deeds executed by Sheikh Abdul Aziz in favour of the defendant nos. 1 and 2 are not genuine and the thumb impression and signature of Sheikh Abdul Aziz with the signature of the admitted sale deed executed in 1962 does not tally with the gift deeds executed in favour of the defendant nos. 1 and 2. The trial court also holds that the registered Bai Mokasa has been duly registered and the signature tallies with 10 the signature of Sheikh Abdul Aziz, and as such, has held that Shakila Khatoon has right and title over the lands which have been gifted to her by the aforesaid documents. The question that has arisen in this appeal would depend on the opinion of the handwriting expert rather than the evidence led by the parties. This Court, however, will also refer to the evidence and the circumstances surrounding the execution of the deeds under challenge to decide the issues in this case. The evidence that has come on record is basically on the issue as to whether Abdul Aziz was well enough to execute the deeds of gift in favour of the defendants. It is the plaintiff‟s case that after Abdul Aziz returned from Haj, he remained unwell and had to be treated at different places. For this purpose, the plaintiffs relied on Exhibit-3 series which are the reports of the doctors for the period September to December, 1992. These prescriptions by various doctors indicate that Sheikh Abdul Aziz was suffering from hypertension and bronchitis. All these prescriptions are by private doctors and although Sheikh Abdul Aziz 11 got himself treated at Dhaka, Laheriasarai Nepal and Muzaffarpur and he has not got himself treated in any Government Hospital. At the most it may be said that Abdul Aziz was not keeping good health as he was suffering from Bronchitis. The medical reports do not really help the plaintiff as they can not conclusively show that Sheikh Abdul Aziz was bed-ridden or incapable of understanding the consequences of his actions. The evidence led on behalf of the plaintiffs similarly do not really help the plaintiff inasmuch as the witnesses have not been able to say that Sheikh Aziz was very sick and was not physically and mentally fit to execute the gift deeds. In fact, P.W.5 states that he died while he was conscious. It appears that a number of the plaintiffs‟ witnesses were on litigating terms with the defendants. Most of the litigations it appears revolve around the lands in question. Some of the witnesses, namely, P. Ws. 9 and 10 are purchasers from the plaintiffs. The other witnesses are formal witnesses who proved one or the other documents. P.W.17 is the 12 only witness who has stated that the plaintiffs are in possession of the land. The plaintiffs‟ witnesses have not been able to prove that the Ekrarnama was executed in their presence. Similarly, the defendants‟ witnesses have also not been able to give any positive evidence regarding the deed of gifts, or possession of the defendants. On perusal of the evidence, the fact which emerges is that both the parties strenuously tried to say that they are in possession of the lands. In all, I find that the evidence of the plaintiffs and the defendants is very weak on the question of either title or possession of the parties. Therefore, this Court has to rely on the broad probabilities of this case alongwith the evidence of the handwriting experts. The plaintiffs in order to substantiate their case relied on the pleadings made in the plaint specifically with respect to the fact that the relationship between the parties was not cordial and so there was no occasion for Sheikh Abdul Aziz to execute deed of gifts in favour of the defendant nos.1 and 2. It is submitted that at 13 paragraph no.3 of the plaint it is specifically mentioned that the plaintiffs and the defendants are separate in mess and live separately. At paragraph no.4, it is stated that Ekrarnama executed in favour of Shakila Khatoon could not be registered because the plaintiff Sheikh Abdul Aziz was keeping indifferent health. It is further submitted that the defendant nos. 1 and 2 have admitted that the defendant and the plaintiff were living separately and there was no jointness between the two. According to the counsel appearing on behalf of the plaintiffs, it is not natural and can not be accepted that Sheikh Abdul Aziz would transfer all his lands and keep nothing for himself for sustaining and maintaining himself specially in view of the fact that Sheikh Abdul Aziz was keeping bad health and he would be requiring money for his treatment etc. In fact, according to the paragraph no.12 of the plaint, it has been stated that he needed to pay the doctors bills and for that purpose he wanted to sell some properties and it is only then that he came to know that most of lands were transferred to the defendants. The arguments of the counsel appearing on behalf of the plaintiffs 14 is that Abdul Aziz fell ill and needed money for the purpose of his treatment is not believable in view of the fact that the prescriptions of the plaintiff Sheikh Abdul Aziz do not disclose that the plaintiff needed a large amount of money for the purpose of getting himself treated. Therefore, this can not be interpreted as a circumstance to indicate that Sheikh Abdul Aziz was not in a position to execute deeds in question. Regarding the contention that it is not natural for Sheikh Abdul Aziz to transfer the entire lands to his nephew and his wife. If the execution of the gift deeds in favour of the nephews and wife were to be upheld, the argument on behalf of the plaintiff that it was not natural to gift all his properties is not really sustainable in view of the fact that Abdul Aziz was not so ill that he was not in a position to look after the property on behalf of his wife. This argument of the plaintiff is self defeating for the reason that the plaintiffs want this Court to hold that gift deed in favour of Bibi Shakila were genuine and bear the L.T.I./signature of the executant, whereas those 15 gifts which were executed in favour of the defendants were not genuine documents. Learned counsel also submitted that Zaifa Khatoon sister of Sheikh Abdul Aziz, has been deprived of her share in her brother‟s property. I do not quite agree with this submission as the share of the sister and the brother‟s property is a very small portion and this would really be a hyper technical objection, moreover, under the Muslim Law the share of the sister in her brother‟s property is not a matter of right inasmuch as the property holder (Sheikh Abdul Aziz) would be perfectly within his rights to deal with his property as he likes in his life time. If the property in question belonged to the father of Sheikh Abdul Aziz, the question of deprivation of Zaifa Khatoon‟s right would be an important circumstance to consider while examining the genuineness of the gift deeds. The appellants-defendants no. 1 and 2 have also pointed out circumstance which would lead this Court to disbelieve the case made out in the plaint. Firstly, it has been submitted that Abdul Aziz had not registered the Ekrarnama in the year 1990 while going for „Haj‟ and 16 although the Ekrarnama itself acknowledges that the executant had to register the same, it was admittedly not done. The reasons for not mentioning the Ekrarnama in the plaint is that the plaintiff no.2 and her brother were aware of the fact that the Ekrarnama could not have any legal binding and no title could have been transferred by this document. It has also been submitted that the Ekrarnama was executed in the year 1990 with a condition that after returning from Haj, Sheikh Abdul Aziz would get the document registered. Learned counsel for the appellants further submits that even after the execution of the Ekrarnama the original plaintiff Sheikh Abdul Aziz remained in possession and in fact this aspect has also been supported by the evidence of Shakila Khatoon in court and she has stated that she cannot describe the lands which were transferred to her. In fact, she has stated that she came to learn about the lands owned by her husband after his death. It has been strenuously submitted that the plaintiff could not have challenged the validity of the gift deed in view of the fact 17 that in the same transaction, that is, just two days after the execution in favour of the defendant nos. 1 and 2, the gift deed was also executed in favour of Shakila Khatoon. Moreover, the Bai Mokasa was executed on the same date as the gift deeds were executed in favour of the defendant nos. 1 and 2. On the other hand it has been argued on behalf of the plaintiff that the said deed of gift and Bai Mokasa has been executed only to justify the execution of 12 deeds in favour of the defendant nos. 1 and 2. I find that this argument is untenable in view of the fact that Shakila Khatoon accepts the documents executed in her favour to be genuine and challenges the deed of gifts executed in favour of the defendant nos. 1 and 2. If the argument of the plaintiff was to be accepted than all the deeds executed by late Sheikh Abdul Aziz should have been rejected by the court below which has not been done. In fact the court has gone so far as to hold that the Ekrarnama is a valid document. With respect to the Ekrarnama the law is well settled by the Full Bench of this Court in the case of The Commissioner of Income Tax 18 Bihar, Patna Vs. Sayed Saddique Imam & Ors. reported in A.I.R. 1978 Patna 197. The full bench considered several decisions of various Courts of the Country such as Talib Ali Vs. Kaniz Fatima Begam & Anr. reported in A.I.R. 1927 Oudh 204, Mt. Saiful Bibi Vs. Abdul Aziz Khan & Anr. reported in A.I.R. 1932 Allahabad 596, Ghulam Abbas Vs. Mt. Razia Begum & Ors. reported in A.I.R.(38) 1951 Allahabad 86 and Mohammad Usman Khan Vs. Amir Main & Ors. A.I.R.(36) 1949 Patna 237 while delivering the aforesaid judgment. While considering these judgments the Court has distinguished between a Hiba gift pure and simple and Hiba bil Iwaz (gift for consideration). Both these concepts of gift are undisputedly recognized under a Mohammedan Law. By Hiba or simple gift the property is gifted by the doner in favour of the donee out of love and affection and by another Hiba Bil Iwaz, the property which was Iwaz or is donated is for consideration. As the latter was not gift simpliciter but a sale in the real sense of the term. Even an undivided property known as Musha could be made a subject matter of the transaction 19 and jurists recognized this transaction as a Hiba Bil Iwaz. A gift of a Mohammedan in lieu of dower debt after the marriage has always been held by judicial decisions to be a Hiba bil Iwaz which is really a sale of property within Section 54 of the Transfer of Property Act and if the value of the property so transferred as more than Rs. 100/- (as it is in the present case) then it must be registered and unregistered deed will will confer title to the donee. Thus the finding of the Trial Court that title passed to Bibi Shakila Khatoon by virtue of the unregistered Ekrarnama which was executed by Azimur Rahman in lieu of Dower Debt is set aside. This Court now comes to the most important point in this case which is whether the plaint bears the L.T.I./signature of Sheikh Abdul Aziz. Learned counsel for the appellants submits that from paragraph nos.24,25 and 26 it appears that there is no specific case of the plaintiff that the thumb impression was forged rather it is the case of the appellants that these documents have been created by misleading(/kks[kk)Sheikh Abdul Aziz. Be that as it may, it would be important 20 for this Court to examine the opinions of the handwriting experts. Learned counsel for the plaintiffs- respondents points out that from perusal of the gift deeds, it would appear that the gift deeds are defective inasmuch as the thumb impression is missing in the middle and last page of some gift deeds which indicates the manner in which the gift deed has been prepared. The plaintiffs‟ expert has found that the signature on the plaint tally with the signature on the admitted document whereas the defendants‟ expert has found that the signature of Sheikh Abdul Aziz does not tally with the signature of the admitted documents. The expert on behalf of the respondents finds that some of the thumb impressions tally with the admitted signature whereas with respect to Exhibit-X/3,X-4 and X-9 the defendants witness has not expressed any opinion on the ground that in some of the gift deeds too much ink has been used which has blurred the thumb impression on the other hand exhibit X/1 marked for examination of the handwriting expert has too little ink and therefore the handwriting expert has