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Basir-ud-dIn Ahmad and ors. Vs. Himmat Ali Mondal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal22,25Ind.Cas.852
AppellantBasir-ud-dIn Ahmad and ors.
RespondentHimmat Ali Mondal and ors.
Excerpt:
evidence - gift--secondary evidence--agent, authority of--presumption--declaratory suit--title, proof of--onus. - .....mitoo sircar, it is said in the year 1854, executed a heba, that is, a deed of gift in favour of anar bibi of the property in question. the heba is not forthcoming. it is now objected that secondary evidence ought not to have been admitted of the heba, because it is not shown that the document on a diligent search could not be found in the lower court, and although the deed was not forthcoming, it does not appear to have been criticized and the point that strict proof had not been given before secondary evidence was adduced does not seem to have been raised there. the secondary evidence given in this case is of the strongest character possible. first of all there is the admission of mitoo himself that he had, in fact, executed the heba in favour of his wife, anar bibi. it is said that.....
Judgment:

Fletcher, J.

1. This is an appeal from a judgment of the learned Subordinate Judge, second Court, of the 24-Parganahs dismissing the plaintiffs' suit. The suit was brought by the plaintiffs for a declaration that they are entitled to a certain share in a certain immoveable property and the ground on which their claim was put forward was that the property in question belonged to one Mitoo Sircar and that the plaintiffs were along with the defendants the heirs of the said Mitoo Sircar. The second claim that was put forward was that it might be declared that neither the defendants nor the deceased Sarafat Mondal had any right to the said 11-annas odd share of the property mentioned in the schedule. I do not know what we have got to do in this case with the title of the defendants or the deceased Sarafat Mondal. The point we have got to deal with in this case is whether the plaintiffs have established their title to a portion of the property as alleged by them in the plaint. The-learned Judge of the Court below came to the conclusion that the plaintiffs had failed to, establish their case, and, after, bearing the evidence, I agree with the learned Subordinate Judge. I think that embody paying any attention to the documents adduced in evidence in this case cannot. at any other conclusion,

2. The case on a very simple point. Admittedly the property originally belonged to Mittoo Sircar and Mitoo Sircar, it is said in the year 1854, executed a heba, that is, a deed of gift in favour Of Anar Bibi of the property in question. The heba is not forthcoming. It is now objected that secondary evidence ought not to have been admitted of the heba, because it is not shown that the document on a diligent search could not be found in the lower Court, and although the deed was not forthcoming, it does not appear to have been criticized and the point that strict proof had not been given before secondary evidence was adduced does not seem to have been raised there. The secondary evidence given in this case is of the strongest character possible. First of all there is the admission of Mitoo himself that he had, in fact, executed the heba in favour of his wife, Anar Bibi. It is said that the petition, presented to the Collectorate by Mitoo was signed only by a Mukhtear. But in a public office like the Collectorate, before the signature of an agent is accepted, the Executive Officer would require proof that the agent has the authority of his principal to sign his name, and, therefore, it must be that a power-of-attorney or mukhtearnamah, as it is called in this country, was produced in this case in the Collectorate to satisfy the Executive Officer that the Mukhtear had the authority to sign the name of Mitoo Sircar. Moreover a petition was put in by Anar Bibi herself in the Collectorate during Mitoo's life-time and the documentary evidence establishes that money was paid into the Collectorate by Anar Bibi through the hands of Mitoo Sircar. There cannot be the slightest doubt in this case that Mitoo did by these documents recognize and admit that he had granted a heba of this property in favour of his wife. From the year 1854, down to the year 1902, when Anar Bibi died, that is, for a period of 48 years, the documents that are produced conclusively show that the title was in Anar Bibi and that she was also in possession of the property. On Anar Bibi's death, the property would go to her heirs and not to the heir of Mitoo Sircar. It is essential in this, case for the plaintiffs to. prove that, the property was the property of Mitoo Sircar and that on the death of Anar Bibi or rather on Mitoo Sircar's death, it passed to the heirs of Mitoo Sircar and not to the heirs of Anar Bibi, In my opinion the documents conclusively prove that the property was the property of. Anar Bibi and not the property of Mitoo Sircar.

3. Another point which has been raised in this case on behalf of the appellants is that the defendants are not the sole heirs of Anar Bibi, but that there are two sisters of Anar Bibi, namely, Abeedunessa Bibi and Amoran Nessaa Bibi, who both acquired on the death of Anar Bibi a share in the property and that the document relinquishing their claim to the defendants was not a registered document and was, therefore, void,: It does not, matter for the purposes of this case whether the document was void or not. If the sisters of Anar Bibi were necessary-parties to the suit, the plaintiffs ought to have joined them as defendants. This is not a case in which the defendants have got to show that they have a title to the property, but it is a case in which the plaintiffs have got to make out their title to the property. It seems to me that on every possible grounds the learned Sub-Judge came a correct conclusion in this case when he held that the plaintiffs had failed to make out their title to any portion of the property. The present appeal, therefore, fails and must be dismissed and dismissed with costs.

Richardson, J.

4. I agree.


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