IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.260 of 2009 Ali Hasan Mian @ Ali Hasan & Ors Versus Mosmat Marian & Ors. ----------- 07. 12.12.2011 Heard Mr. K.N.Chaubey, the learned senior counsel appearing on behalf of the appellants in support of this appeal. 1. This appeal has been filed by the defendant against the judgment and decree dated 26.02.2009 passed by Additional District and Sessions Judge,Fast Track Court-III, West Champaran at Bettiah in T.A.No.09/1995 affirming the judgment and decree dated 09.12.1994 passed by Additional Munsif III, Bettiah, West Champaran in T.S.No. 82/1990. 2. The suit has been filed by the plaintiff for declaration that the defendant no.2, Bibi Shayada is not the daughter of late Rahmat Mian and Bibi Khedaran and further two gift deeds dated 09.12.1987/23.12.1987 and 19.12.1987 executed by Bibi Khedaran in favour of defendant no.1, Ali Hasan Mian and defendant no.2, Bibi Shayada are forged, fabricated and illegal documents. The further consequential relief of injunction has also been 2 prayed for. 3. Admittedly, the suit property belonged to Bibi Khedaran. The plaintiff no.1 is the son of Bibi Khedaran who has challenged the two gift deeds claimed by defendant nos. 1 and 2 to have been executed by her in their favour, mainly on the ground that the same had been obtained by the defendant nos. 1 and 2(husband and wife) by playing fraud upon the executant, Bibi Khedaran. It is also the case of the plaintiff that Bibi Khedaran was an old lady and the defendants obtained a thumb impression on sada stamp papers by taking benefit of their friendly and intimate relationship with her when she was terminally ill. The plaintiffs have alleged that the defendants later on fabricated the gift deeds in their favour with regard to the entire property of Bibi Khedaran. 4. The defendants have appeared and denied the allegations of the plaintiffs and have asserted that Bibi Khedran had executed the two gift deeds out of her freewill and volition in favour of the defendants. The defendants have claimed that defendant no.2, Bibi Shayada is the daughter of Bibi Khedaran and defendant no.1, Ali Hasan Mian is her son-in-law and the gift deeds 3 had been executed out of love and affection for them by Bibi Khedaran. 5. On the basis of the pleadings of the parties, specific issue with regard to the allegation of fraud in execution of the two gift deeds was framed besides other issues. After considering the pleadings, evidence and rival submissions of the parties, both the courts below have recorded concurrent finding of fact that the gift deed dated 19.12.1987 in favour of defendant no.1, Ali Hasan Mian has been obtained by fraudulent means and is not a valid document. Both the courts below have further held that defendant no.2, Bibi Shayada is not daughter of Bibi Khedaran. However, with regard to the gift deed dated 19.12.1987 for 4 Dhurs of land in favour of the defendant no.2 it has been found by the trial court that Bibi Khedaran had earlier orally gifted her 4 dhurs of land to the defendant no.2, Bibi Shayada and in the house constructed over the same she has been residing and has also let out some portions to tenant. It has been further found by the trial court that the oral gift had been made by Bibi Khedaran in favour of defendant no.2 after being pleased with the services of defendant no.2 who was daughter of 4 her friend and on the basis of these findings, the trial court upheld the validity of the gift deed dated 19.12.1987 of the defendant no.2. As there was no appeal or cross appeal by the plaintiffs against the dismissal of the suit with regard to the gift deed dated 19.12.1987 in favour of defendant no.2, the appellate court has not discussed evidence and legality of the finding of the trial court upholding this validity. 6. Learned counsel appearing on behalf of the appellants has assailed the impugned judgments of the courts below firstly, on the ground that the burden of proof has been wrongly placed upon the defendants to prove the validity of the gift deeds in question even when there is no assertion and proof that the donor, Bibi Khedaran was a Pard Nashin Lady and this wrong placing of burden has greatly prejudiced the case of the defendants and vitiated the conclusions of both the courts below. The learned counsel has placed reliance upon a decision of this Court in (Nirmala Devi Vs. Panna Lal) 2011(3) PLJR 174. It has been next contended that Article 135 of Mulla Mohamedan Law has been wrongly applied in this case even when the necessary precondition for its application, 5 that the donor must be under marz-ul-maut(death illness), was absent in this case. It has been contended that there was no evidence to show that the donor, Bibi Khedaran was under apprehension of death due to the nature of her illness (malady). Learned counsel has next submitted that once the gift deed (Ext.B/1) in favour of defendant no.2 has been accepted to be valid document executed by Bibi Khedaran, then there could have been no valid reason for discarding gift deed (Ext.B) in favour of the defendant no.1, also executed by Bibi Khedran. It has been also urged that in the gift deed (Ext.B/1), the defendant no.2, Bibi Shayada had been mentioned as daughter of Bibi Khedaran and therefore, there is no scope to conclude that she is not the daughter of Bibi Khedaran, when this gift deed has been accepted to be valid and genuine document. 7. With regard to the first submission on behalf of the appellants regarding the burden of proof, it is relevant to mention that it is the case of the plaintiff that the Bibi Khedaran had suffered from paralysis in the month of November, 1987 and had gradually become weak and unable to move and finally expired on 26.02.1988. It is true that there is no assertion that Bibi 6 Khedaran was a pardanashin lady but simultaneously, there is no assertion by the defendant (donee) that Bibi Khedaran was a literate lady or at least a prudent lady capable of understanding the nature of transactions. The fact that Bibi Khedaran was an old paralyzed lady suffering from illness has also not been denied by the defendants rather the defendant no.1 in his deposition has accepted the fact of her illness. The defendant no.2 who has claimed herself to be the daughter of Bibi Khedaran has also not come to depose the same although she was the best person to state regarding physical status and mental capability of Bibi Khedaran. Moreover, the special protection granted to pardanashin ladies in India is not confined to such ladies only rather such protection is equally available to old and infirm persons when the transaction on the face of it appears to be unconscionable and having been made in favour of the persons in position to dominate the will of the executant. There is no dispute that Bibi Khedaran had only 4 katha 19 dhurs of land which had all been alienated in favour of the defendants (donees) even when her son, grandson and other family members were admittedly alive with whom she was 7 living. As such, there is no illegality in the observations of the learned court below that the burden lies upon the defendants to establish that the gift deeds had been executed out of freewill and volition but the perusal of the judgments of both the courts below shows that the findings have been recorded after considering the evidence of both the parties and the courts have not stuck themselves to the principle of burden of proof. It is well settled that the question of burden of proof becomes immaterial when both the parties have led their evidence and the relevant facts of the case are before the Court. The judgment of the apex court in (Arumugham Vs. Sandarambal) 1999(4)SCC 350 illumines the legal principle in this regard by laying down as follows:- “16….On the question of burden of proof we are of the view that even assuming that burden of proof is relevant in the context of the amended provision of Section 100 C.P.C., the same would not be relevant when both sides had adduced evidence. It would be relevant only if a person on whom the burden of proof lay failed to adduce any 8 evidence altogether. In the present case, both sides had adduced oral as well as documentary evidence and therefore, even assuming that it was erroneous in the lower court to say that the burden of proof lay on the first defendant to prove that the plaintiff was not the son of Late Hari Theertham, that would not, in our opinion, have any material bearing on the conclusion reached by the lower appellate court…” 8. In view of the above discussion, there appears to be no force in the submission of the learned counsel to the effect that the observation regarding burden of proof by the courts below has vitiated their judgment. 9. There is concurrent finding of fact that the gift deed (Ext.B/1) has been obtained fraudulently and both the courts have relied upon the evidence and circumstances showing absence of freewill and volition exercised by the donor in executing the gift deed. Such finding is binding upon the court in second appeal and in fact during the course of argument nothing could be pointed out to establish the perversity in the finding. As such the 9 submission regarding non-application of the principle envisaged under Article 135 of Mulla Mohamedan Law becomes immaterial. Moreover there is concurrent finding of fact that Bibi Khaderan was seriously ill during the period when the gift deeds had been alleged to have been executed by her and she died nearly two months after the execution of the gift deeds. Both the courts below though, have not categorically recorded the finding of terminal illness of Bibi Khedaran but have applied the principle keeping in overall view of her illness and death. But simultaneously, it cannot be lost sight of that this aspect has no bearing upon the final outcome in view of the findings of fraud. 10. The factors which weighed with the trial court in upholding the validity of the gift deed dated 19.12.1987 in favour of defendant no.2 are rather quite different and not applicable while considering the validity of the gift deed dated 19.12.1987 in favour of defendant no.1. One of the important factors in favour of the defendant no.2 is her prior possession of 4 dhurs of land, subject matter of the gift deed, on the basis of oral Hibba by Bibi Khedaran made to her much earlier. Therefore, it is difficult to 10 accept the submission that in view of the finding regarding validity of the later gift deed dated 19.12.1987 in favour of defendant no.2 regarding small area of 4 dhurs of land, the earlier gift deed of larger area consisting of the entire remaining land of the old lady in favour of defendant no.1 should also be held to be valid. Both the courts below, after considering the evidence on record, have found the earlier gift deed to be surrounded by suspicious circumstances and there is no reason to interfere with this concurrent finding of fact. In view of the above discussions, there is no substantial question of law arising for consideration in this second appeal, which is, accordingly, dismissed. Nitesh ( V. Nath, J.)