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Abdul Aziz Khan Vs. Mt. Kaniz Fatima and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1933All302; 145Ind.Cas.754
AppellantAbdul Aziz Khan
RespondentMt. Kaniz Fatima and anr.
Excerpt:
- - abdul jalil had been a munsarim of the civil court at shahjahanpur, and he was well aware, as one of the attesting witnesses barkatullah khan says, that it was necessary to execute this deed of wakf on a stamped paper. if he had adopted it the plaintiffs would clearly have denied the execution, and in that case the sub-registrar should have refused to register, leaving the matter for the defendant to apply to the district registrar to endeavour to prove that the document had been duly executed by abdul jalil deceased. the document therefore would fail on the ground that it does not bear any signature or thumb impression of the alleged executant. we consider therefore that this alleged wakfnama would fail on three grounds:.....two sisters of the defendants, possession of a half-share of the property of their deceased father abdul jalil khan, and of their brother, also deceased, mohammad amin khan, and of their deceased mother, and granting a declaration that a deed of wakf alleged to have been executed by their deceased father, abdul jalil khan, on 27th june 1926, was not genuine and was not executed by abdul jalil khan. the sole question before us in appeal is the allegation of the appellant that the deed of wakf is genuine and was executed by his father. abdul jalil khan died a month and a half after the alleged execution of this document, the date of death being 6th august 1926. the deed of wakf was not registered during the lifetime of abdul jalil khan and no satisfactory reason has been given as to why.....
Judgment:

Bennet, J.

1. This is a first appeal by the defendant, Abdul Aziz Khan, against a decree of the learned Subordinate Judge of Shahjahanpur, awarding the plaintiffs, who arc the two sisters of the defendants, possession of a half-share of the property of their deceased father Abdul Jalil Khan, and of their brother, also deceased, Mohammad Amin Khan, and of their deceased mother, and granting a declaration that a deed of wakf alleged to have been executed by their deceased father, Abdul Jalil Khan, on 27th June 1926, was not genuine and was not executed by Abdul Jalil Khan. The sole question before us in appeal is the allegation of the appellant that the deed of wakf is genuine and was executed by his father. Abdul Jalil Khan died a month and a half after the alleged execution of this document, the date of death being 6th August 1926. The deed of wakf was not registered during the lifetime of Abdul Jalil Khan and no satisfactory reason has been given as to why registration was not made during his lifetime. It was only after his death that the alleged deed was produced before the Sub-Registrar for registration.

2. The document was on an unstamped paper and here at once suspicion is aroused because if the document had been concocted after the death of Abdul Jalil, one of the difficulties in the ways of the persons forging the document would have been to obtain a properly stamped paper bearing a date during the lifetime of Abdul Jalil. Stamp vendors have to endorse the date of sale and a stamp vendor will not willingly lend himself to an entry of a wrong date of sale as he has also to show in his register what stamp papers he has sold on each date. Accordingly it is much easier for a person concocting a document after the death of the alleged executant to concoct a document on an unstamped paper. The document was taken to the Collector after the death of Abdul Jalil and the necessary stamp duty was paid. Abdul Jalil had been a munsarim of the civil Court at Shahjahanpur, and he was well aware, as one of the attesting witnesses Barkatullah Khan says, that it was necessary to execute this deed of wakf on a stamped paper. The reason given by the attesting witnesses as to why this was not done is that Abdul jalil did not know whether the proper rate of duty was four annas or eight annas or one rupee per cent ad valorem. This is a matter which Abdul Jalil could easily have found out, and he made no attempt to ascertain the correct amount of duty and have a properly stamped paper. The next point which arouses suspicion is the circumstance tinder which the document was registered. It was produced before the Sub-Registrar by the defendant, who was at that time the sole surviving son of Abdul Jalil. But there were also the two plaintiffs, the two daughters of Abdul Jalil alive.

3. These three persons constituted the legal representatives of Abdul Jalil. Section 35(1)(c), Registration Act, states, that if the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directedin Sections 58 to 61 inclusive. Now it is not stated in the section that if one of several representatives appears and admits execution that the Sub-Registrar should register the document. It is provided in Section 35(3)(c) that if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document. We consider that these two sections together mean that the Sub-Registrar should have before him the admission of all the legal representatives of a deceased person before he should proceed to register a document. The Sub-Registrar did not in the present case adopt that course. If he had adopted it the plaintiffs would clearly have denied the execution, and in that case the Sub-Registrar should have refused to register, leaving the matter for the defendant to apply to the District Registrar to endeavour to prove that the document had been duly executed by Abdul Jalil deceased. It is not for a Sub-Registrar to hold such an inquiry. It is for a District Registrar to inquire into that matter. We consider therefore that the document was registered by the Sub-Registrar when he was not authorized to register it. This document was next used by the defendant in mutation but the defendant did not apply to the mutation Court to send any notice to the plaintiffs. On the contrary he merely made an application in his own name against the name of his deceased father, and obtained a mutation order from the Tahsildar as an undisputed case. It is stated that the document was produced in that mutation proceeding and afterwards taken away by the defendant.

4. The next difficulty of the defendant arose from the fact that his sisters were apparently determined to insist on their rights and on 18th September 1928, his sisters filed the present suit. The defendant did not file his written statement until after considerable delay. On 10th January 1929, when he did so, he did not produce the deed of wakf. He tells a story that he went to a friend of his who was the central nazir in Budaun, and was introduced by that friend to B. Shiv Narain Jafa, an advocate of Budaun, to whom he gave several papers including this deed of wakf during the Christmas holidays of 1928, and on his return after the Christmas holidays he found that this paper had the most important part of it, missing. The portion which remains contains a list of property and the signatures of attesting witnesses and the endorsement of the Sub-Registrar. The vakil in question gives evidence to the effect that he gave the document to his clerk and that this part of the document must have been lost in his office. Bur his evidence is far from convincing, and we are of opinion that the whole of this evidence is merely intended to relieve the defendant of the difficulty of producing a document which would be probably held to be a forgery. As the document stands there is one very remarkable point about it which has escaped the attention of the lower Court, and that is that according to the copy of the office of the Sub-Registrar there should be a signature of the executant Abdul Jalil Khan immediately before the thumb impressions and signatures of the attesting witnesses.

5. But in Ex. Z which is that original part of the document, there is no such signature of the executant. The document therefore would fail on the ground that it does not bear any signature or thumb impression of the alleged executant. We consider therefore that this alleged wakfnama would fail on three grounds: firstly, that execution is not proved; secondly, that it was not properly registered and thirdly, that it does not bear any signature or thump impression of the alleged executant. We therefore consider that the decision of the Court of first instance was correct, and we dismiss this first appeal with costs.


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