FIRST APPEAL No. 444 OF 1979 Against the judgment and decree dated 10.3.1979 passed by Sri Aditya Sharan, 2nd Additional Subordinate Judge, Arrah in Title Suit No. 171 of 1973 / 234 of 1974. MOHD. IBRAR & ORS. ……… Plaintiffs/Appellants Versus FASIUDDIN & ORS. ……… Defendants/Respondents ******** For the Appellants : Mr. Rai Shivaji Nath, Sr. Advocate. Mr. Rajesh Sinha, Advocate. Mr. Rai Saurabh Nath, Advocate. For the Respondents : Mr. Anish Chandra Sinha, Advocate ________________________ Dated : 4th day of February, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The plaintiffs have filed this first appeal against the judgment and decree dated 10th March 1979 passed by Sri Aditya Sharan, 2nd Additional Subordinate Judge, Arrah in Title Suit No. 171 of 1973 / 234 of 1974 dismissing the plaintiffs-appellants’ suit for specific performance of contract. 2. The plaintiffs-appellants filed the aforesaid title suit for a decree for specific performance of contract dated 13.11.1972 regarding the property mentioned in Schedule 2 of the plaint. 3. The plaintiffs claimed the aforesaid relief alleging that the plaintiffs were knowing the defendant Bibi Nurfatma from before. She Mungeshwar Sahoo, J. -2- was in need of money for repairing her house and other expenses so she agreed to sell the land measuring 4.25 acres and house measuring 13 decimal for a consideration of Rs.20,000/- and on receiving advance of Rs.5000/- a Mahdanama was executed on 13.11.1972. She agreed to execute and register the sale deed by 30th Kartik 1973. The culturable land measuring 4.25 acres was coming in possession of the plaintiffs as Sikamidars. Bibi Nurfatma gifted 12 decimal of house out of the suit property in favour of Mohd. Abas Khan and, therefore, to avoid litigation Mohd. Abas Khan re-conveyed the aforesaid 12 decimal of the house to the plaintiffs by executing a registered sale deed in March 1973. Therefore, suit was filed for specific performance of contract for sale regarding 4.25 acres of culturable land and remaining 1 decimal of holding No.146. The plaintiffs were always and are still ready to perform their part of the contract. The plaintiffs requested many times to accept the balance consideration amount and execute the sale deed but she avoided. Notices were sent but she refused to accept the notice. Hence the suit. 4. The further case of the plaintiffs is that after institution of the suit Bibi Nurfatma, defendant No.1, sold the suit property to the tenant Chaturgun Sah. The sale in favour of Chaturgun Sah is hit by Section 52 of the Transfer of Property Act and moreover, the sale is sham and colourable and without consideration. 5. The original defendant No.1 Bibi Nurfatma appeared and filed a separate written statement and thereafter she died. According to her written statement the value of the suit property is not less than Rs. 40,000/- She was a Pardanashin lady and was illiterate. She only used to sign. There was no such agreement for sale as alleged by the plaintiffs and no Mahadanama was executed on 13.11.1972 by her after receiving advance of Rs. 5000/- regarding the suit property. The -3- said Mahadanama is forged and fabricated and it does not bear the signature of Bibi Nurfatma nor she ever put signature on it. She never asked scribe Brij Kumar Lal to writ any Mahadanama nor she asked the witnesses to put their signature on the said Mahadanama. The two attesting witnesses Mohd. Sakur and Abdul Barkat were originally employees of Bibi Nurfatma but they were removed by her as they were committing mischief forgery by practicing fraud upon her and, therefore, they might have in collusion with the plaintiffs manufactured the Mahadanama. 6. The further case is that they have also got a manufactured deed of gift in favour of Absa Khan and, therefore, Bibi Nurfatma has filed Title Suit No. 20 of 1973 challenging the gift deed. The further case is that the plaintiffs were never in possession of her land as Sikamidars nor they are in possession. She has sold suit property in favour of Chaturgun Sah. Because the gift deed in favour of Abas Khan is also forged and fabricated, the sale deed executed by Abas Khan is not binding on the defendant and it did not confer any title on the plaintiffs. A separate written statement has been field by Chaturgun Sah. His defence is in the same line as that of Bibi Nurfatma. The other purchasers, defendant Nos. 4 and 5 also filed separate written statement taking the same defence. The legal heirs substituted in place of Bibi Nurfatma adopted the written statement of her. 7. On the basis of above pleadings of the parties the learned court below framed the following issues : “1. Have the plaintiffs got valid cause of action for the suit ? 2. Is the suit as framed maintainable ? 3. Has the suit been properly valued and is the court fee paid sufficient ? -4- 4. Whether there was any agreement for sale as alleged by the plaintiffs ? 5. Is the Mahadanama genuine document and whether it bears the signature of Bibi Nurfatma ? 6. Whether the subsequent purchasers are bona fide purchasers for value and without notice to the previous contract ? 7. Are the plaintiffs entitled to a decree for specific performance of contract for sale in respect of Sch. 2 land/lands or in the alternative for recovery of Rs.5,000/- with interest as claimed ? 8. To what relief or reliefs if any are the plaintiffs entitled ?” 8. After trial the learned court below came to the conclusion that the plaintiffs have failed to prove that the signature on Mahadanama Ext.5 is of Bibi Nurfatma. The learned court below also found that the plaintiffs have not been able to prove that there was any agreement and not entitled to recover Rs.5,000/- because they failed to prove payment of Rs.5,000/-. The learned court below also found that the plaintiffs are not in possession of the suit property. 9. Mr. Rai Shivaji Nath, the learned Senior Counsel appearing on behalf of the appellants submitted that the learned court below has wrongly dismissed the plaintiffs’ suit. The learned counsel further submitted that to prove the execution of the deed of agreement the plaintiffs even examined the handwriting expert and adduced oral evidence who have identified the signature of Bibi Nurfatma on the deed of agreement but the learned court below disbelieved them on untenable grounds. The learned counsel further submitted that the witnesses have stated that the scribe read over and explained the Mahadanama to Bibi Nurfatma and after understanding the contents thereof she signed on the deed of agreement. The learned counsel -5- further submitted that the expression “Pardanashin” is not a term of Art. It has special legal significance as one who is unable to understand the transaction by virtue of the manner in which she has been brought up. In the present case, Bibi Nurfatma may be Pardanashin but had the fullest capacity of understanding the transaction but the learned court below without considering these aspect of the matter held that there is no evidence on record to prove that in fact the contents of the documents was read over and explained to her and she put her signature after understanding the impact and import of the document. The learned counsel further submitted that the learned court below has not properly appreciated the evidences. On these grounds it was submitted that the impugned judgment and decree are liable to be set aside and the plaintiffs- appellants’ suit should be decreed. 10. On the other hand, the learned counsel appearing on behalf of the respondents submitted that the plaintiffs have approached the court with unclean hand. The witnesses examined on behalf of the plaintiffs are not reliable and, therefore, the learned court below after considering their evidences did not rely on their testimony. The learned counsel further submitted that the handwriting expert examined on behalf of the plaintiffs admitted that he is not even a matriculate and he does not know reading Urdu and, therefore, the learned court below has rightly disbelieved his evidence. The defendants also examined the expert who has deposed to effect that the signature on the deed of agreement is not of Bibi Nurfatma. 11. The learned counsel further submitted that this court being first appellate court should not lightly interfere with the finding of fact arrived at by the trial court on proper consideration of oral evidences only. -6- 12. The learned counsel further submitted that the appeal has become now incompetent as the appeal has abated as against the heirs of the deceased respondent No.2. Now therefore, so far the share of respondent No.2 is concerned who inherited the properties cannot be directed to be sold to the plaintiffs as the other respondents are not representing their share. On these grounds also the Mahadanama cannot be specifically enforced. On these grounds the learned counsel submitted that this appeal is liable to be dismissed with costs. 13. In view of the above rival contention of the parties, the point arises for consideration in this appeal is, as to whether the deceased Bibi Nurfatma executed the deed of agreement dated 13.11.1972 regarding the suit property in favour of the plaintiffs and whether the plaintiffs are entitled for a decree for specific performance of contract and whether the impugned judgment and decree are sustainable in the eye of law. 14. The submission of the learned counsel for the appellant is that the witnesses have stated and proved that the contents of the deed was read over and explained to Bibi Nurfatma then she signed on it. PW 12 is the expert examined on behalf of the plaintiffs’ witnesses. From perusal of the evidence it appears that in cross examination in paragraph 15 he has admitted that he has not passed matriculation. He has further admitted that he has not obtained training regarding the handwritings science in any Govt. institution. Urdu was not his subject. Admittedly the signature which he examined is in Urdu. Therefore, the learned court below has not relied upon his report Ext.8. I find no reason to interfere with the finding of the learned court below regarding appreciation of the evidence of this PW 12. -7- 15. Ext. 5 is the deed of agreement dated 13.11.1972. It appears that Mohd. Sukar Alam and Abdul are the two attesting witnesses and Brij Kumar Lal is the scribe of Ext.5. It may be mentioned here that all the documents on behalf of the plaintiffs- appellants in the court below marked as Ext. have been taken back by them. In spite of repeated direction they did not re-file the same before the court and, therefore, the said documents are not available on record. Further comments made by the learned court below on these documents are admitted. Therefore, it can safely be stated that these two witnesses are attesting witnesses and Brij Kumar Lal Sharma is the scribe. The plaintiffs never examined the scribe on the ground that he is ill and is bed ridden and even the doctor has been examined as PW 16 and the doctor stated that Brij Kumar Lal is confined to bed. Likewise PW 18 the plaintiff and PW 19 all stated that Brij Kumar Lal is not in a position to depose. Surprisingly enough this scribe Brij Kumar Lal has been examined on behalf of the defendant as DW 1. He has stated that he was never ill and never bed ridden and he was never examined by doctor. In view of his evidence now it becomes clear that the plaintiffs were avoiding to examine him as a witness on their behalf therefore explanation has been given by the witnesses and also doctor was examined and doctor’s certificate was proved. The conduct of the plaintiffs in view of the above facts needs no comments. 16. DW 1 has stated that no transaction took place in his presence Bibi Nurfatma did not sign in his presence. From his evidence it does not appear the he read over and explained the contents of the deed of agreement to Bibi Nurfatma. Now therefore, the main witness denies about the transaction of Rs. 5000/- and also signature of Bibi Nurfatma in his presence. The other attesting witnesses PW 8 Abdul Barkat no doubt has said that the document was read over and -8- explained to Bibi Nurfatma who put her signature on the deed of agreement but admittedly he was employee of Bibi Nurfatma. PW 10 has admitted that Abdul Barkat was the employee of Bibi Nurfatma and was dismissed by her from his service. The other contesting witness Sakur Alam has not been examined. Therefore, in view of the evidence of DW 1 i.e. the scribe and in view of the conduct of the plaintiff regarding examination of the scribe the evidence of PW cannot be relied upon and, therefore, the learned court below has rightly not relied upon the evidence of PW 8. The other witnesses PW 10, PW 11 and PW 13 no doubt have identified the signature of Bibi Nurfatma but in their cross examination they have admitted that the signature was not put in their presence. Moreover, they are not handwriting expert. PW 19 is plaintiff himself. 17. PW 5 in his evidence admitted that Bibi Nurfatma was a Pardanashin lady vide paragraph 8 of his cross examination. It is well settled principle of law that the burden is on the person who want to take advantage of a document executed by Pardanashin lady to prove that she put her signature after fully knowing and understanding the contents and its effect and consequences. In the present case, I have held that PW 8 is not reliable and there is no reliable evidence to show that in fact the deed was read over and explained by the scribe and after knowing its effect and consequence Bibi Nurfatma signed the document. On the contrary the scribe who was examined as DW 1 has stated that in his presence Bibi Nurfatma has not signed on the document. 18. It may be mentioned here that the plaintiffs’ case itself is that out of the suit property 13 decimal house was gifted by Bibi Nurfatma to Abas Khan and Absas Khan sold the said property to the plaintiff. It is admitted fact also that Bibi Nurfatma had filed title suit -9- No. 20 of 1973 challenging the gift deed as forged and fabricated. The suit is still pending. On the death of Bibi Nurfatma her heirs have been substituted. Out of the heirs respondent No.2 died and for non substitution of the legal representatives of said respondent No.2 the appeal has abated as against the heirs of respondent Nos. 2 and this fact has been recorded by Order No. 15 dated 7.9.1995. During long period no prayer has been made for setting aside abatement as against them. 19. The learned counsel for the appellants relied upon AIR 1972 Patna 325 Smt. Andhi Kuer and another Vs. Rajeshwar Singh and others and submitted that Bibi Nurfatma may be a Pardanashin but she was not observing Parda and was knowing the transaction and affairs fully. Once the plaintiffs stated that she executed the document with fullest capacity after understanding the transaction the burden shifts on the defendants to show that Bibi Nurfatma had no capacity to understand the transaction and she was a Partanashin lady. So for the decision cited by the learned counsel is concerned there is not dispute regarding the law. It is well settled that in India Pardanahin ladies have been given a special protection in view of the social conditions. In the said decision the high Court after considering the evidence available on record held that Barti Kure was not a lady who could be called Pardanashin lady in the sense in which the said term is understood in law. In the present case as has been stated above the deceased Bibi Nurfatma herself in the written statement alleged that she is Pardanashin and illiterate lady and only know to sign. The witnesses examined on behalf of the plaintiffs i.e. PW 5 clearly admitted that she was Pardananashin lady. DW 1 scribe never stated that after reading and understanding Bibi Nurfatma signed the document. The other witnesses have been disbelieved. Now -10- therefore, in the present case at our hand there is absolutely no reliable evidence available on record to show that Bibi Nurfatma who was admittedly a Pardanashin lady signed on the deed of agreement after understanding its contents and effect and consequences. There is also no reliable evidence that the contents of the document was read over and explained to her in the language to which she understand. 20. The other witnesses examined on behalf of the plaintiffs are either formal witnesses or are on the point of possession of the plaintiffs. In my opinion so far possession is concerned it is immaterial. Moreover, there are evidences adduced on behalf of the defendant which has been relied upon by the learned court below and it has been found that the subsequent purchasers are in possession of the suit property. Even if it is held that the plaintiffs are in possession then also on that ground alone the plaintiff’s suit for specific performance of contract cannot be decreed. 21. So far readiness and willingness is concerned also it depends only on the question of genuiness of the documents Ext.5. We have seen above that there is no reliable evidences that Bibi Nurfatma put her signature on the deed of agreement. The plaintiffs have failed to prove that signature appearing on deed of agreement is the signature of Bibi Nurfatma and the deed of agreement is genuine documents. The plaintiffs have also failed to prove that Bibi Nurfatma was read over and explained the contents of the deed of agreement and after understanding the contents thereof she put her signature. I, therefore, find that the alleged deed of agreement Ext.5 dated 13.11.1972 cannot be specifically enforced. Since it has been found that the plaintiffs have failed to prove the documents Ext.5 to be genuine document, it cannot be said that Rs.5000/- was received by Bibi Nurfatma as advance. -11- 22. In view of my above discussion, I find that the deed of agreement Ext.5 is not a genuine document and, therefore, the plaintiffs are not entitled for a decree for specific performance of contract. The finding of the learned court below on these points are therefore, confirmed. 23. In the result, I find no merit in this appeal and, therefore, this first appeal is dismissed. The parties shall bear their own costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 4th February, 2011 S.S./N.A.F.R.