Soraban Bewa vs Jinnath Bibi

Asit Kumar Bisi, J.—The instant appeal preferred by the Appellants is directed against the judgment and preliminary decree passed by Sri P.R. Sinha Sarkar the learned Subordinate Judge, Malda on April 30, 1982 in partition suit No. 53 of 1971. The suit for partition out of which the present appeal has arisen has been instituted by the Plaintiffs presently the Respondents for effecting partition of the suit properties alleging that the Plaintiffs and the Defendants are co-sharers of the same.

Briefly stated the case of the Plaintiffs is that the suit properties are the ancestral properties which originally belonged to Haji Liakat Momin who owned and possessed the same. The said Haji Liakat Momin had three wives. Borania Bewa was his first wife, Joynab Bewa and Soraban Bewa were his second wife and third wife respectively. Haji Liakat Momin had three sons and two daughters by his first wife Borania and the names of the said three sons are Darab Ali Momin, Touhid Ali Momin and Murshed Ali Momin. Jalian Bewa and Zinnat Bibi are the said two daughters. Darab Ali Momin predeceased Haji Liakat Momin. He died leaving behind his two wives, a son and four daughters. Borania Bewa died during the lifetime of Haji Liakat Momin leaving behind the sons, the daughters, the son''s sons and the son''s daughters. Haji Liakat Momin lived together with his second wife Joynab and all the sons and daughters of his first wife in the same mess. After 5/6 years of his marriage with Jainab, Haji Liakat Momin married Soraban Bibi who was his third wife. At the time of the marriage Soraban Bibi was aged 15/16 years and Haji Liakat Momin was aged 56/57 years. Haji Liakat Momin had three sons and a daughter by his second wife Jainab and the said sons are Mafijuddin, Safijuddin and Hafijuddin and the name of the daughter is Afjan. Four sons Md. Jalaluddin, Md. Faijuddin, Sahabuddin and Ashimuddin and two daughters Bibi khasbunnessa and Bibi Samusunnessa were born of the third wife Soraban Bibi and Haji Liakat Momin.

After death of Haji Liakat Momin the suit properties devolved upon his nine sons Murshed, Mafijuddin, Safijuddin, Hafijuddin, Jalaluddin, Aijuddin, Sahabuddin and Ashimuddin and five daughters Jalian Bibi, Zinnat Bib, Afajan Bibi, Khushbannessa and Samsunnessa Bibi and two widows Jainab and Soraban. Haji Liakat Momin died at the age of 90/95 years. After his marriage with his third wife Soraban he was completely under the care and control of Soraban and had no ability to do anything of his own accord. He was fully dependent upon his third wife Soraban and her sons. Soraban and her sons fully dominated the will of Haji Liakat Momin. They exercised undue influence upon Haji Liakat Momin and got various deeds executed by the latter in respect of the suit properties in their favour. One or two deed were registered in the names of other sons, the son''s and second wife in respect of lesser quantity of lands. In fact all the aforesaid deeds were executed under undue influence and such sale deeds have no legal effect or force and are not enforceable against the Plaintiffs. The alleged transferees did not acquire any rights, title interest or possession in respect of the properties. Haji Liakat Momin possessed the entire properties till his death. He died on January 13, 1967. The Plaintiffs have shares in the suit properties. They have been possessing the suit properties jointly with the Defendants after the death of Haji Liakat Momin. Due to inconvenience in the joint possession the Plaintiffs asked the Defendants to make partition of the suit properties on August 12, 1970 but the Defendants have not partitioned the suit properties.

Defendant Nos. 1 to 7 and 14 have contested the suit by filing a joint written statement wherein the material allegations contained in the plaint have been denied. It has been averred inter alia by the contesting Defendants in their written statement that the suit is not maintainable in law, that the suit is barred by limitation and that the suit is barred by limitation and that the suit is bad for non-joinder of parties. The case of the contesting Defendants inter alia is that the suit properties mentioned in schedule (ka), (kha), (ga), (gha), (una), (cha), (chha), (ja), (jha), (eno), (ta) (excluding 75 cents out 1.41 cents of plot No. 12), (tha), (da) and (dha) were the joint properties of the Plaintiffs and the Defendants nor the said properties are liable to the parties. The Plaintiffs have no share in those properties. During his lifetime Haji Liakat Momin out of his own will executed Heba bill ewaj on May 11, 1962 in respect of ka schedule property the garden and arable land appertaining to plot No. 79 under khatian No. 117 of mouza Gauripur in favour of Defendant Nos. 2 and 3 and delivered possession to them. The said deed was registered on August 6, 1962. Since then Defendant Nos. 2 and 3 have been possessing the said properties to the knowledge of the Plaintiffs and other Defendants. The said Haji Liakat Momin executed of kha schedule properties in favour of Defendant Nos. 4 and 5 and delivered possession to them. The said deep was registered on August 6, 1962. Since then Defendant Nos. 4 and 5 have been possessing the said properties. By virtue of the sale deed executed on April 11, 1955 and registered on April 22, 1955 the said Haji Liakat Momin sold ga schedule properties to Defendant Nos. 2 and 3 and delivered possession to them since then Defendant Nos. 2 and 3 have been possessing those properties. He executed and registered Hebanama on March 9, 1954 in respect of gha schedule properties in favour of Defendant Nos. 2 and 3 and delivered possession to them. Defendant Nos. 2 and 3 have been possessing the said properties since then. Defendant Nos. 2 to 5 got possession of una schedule properties on the basis of the hebanama executed and registered by the said Haji Liakat Momin on January 25, 1954. Defendant Nos. 2 to 5 are in possession of those properties since then. The said Haji Liakat Momin executed and registered a sale deed dated June 7, 1954 in respect of cha schedule properties in lieu of Denmohar in favour of Defendant No. 1 and delivered possessing. Since then Defendant No. 1 has been executed and registered on March 5, 1963. Since then Defendant No. 14 has been possessing the said properties. Haji Liakat Momin executed and registered the hebanama on January 4, 1966 in respect of ja schedule properties in favour of Defendant No. 7 who has been possessing the said properties since then. Jha schedule properties were given to Defendant No. 5 under hebabil ewaj executed by Haji Liakat Momin on January 9, 1967 which was registered on January 11, 1967. He gave eno schedule properties to Defendant Nos. 2 and 3 under the hebabil ewaj executed January 9, 1967 and registered on January 11, 1967 and possession of those properties had been delivered to Defendant Nos. 2 and 3 who have been possessing the same. He delivered tha schedule property in lieu of Denmohar to Defendant No. 8 under the sale deed executed and registered on August 4, 1966 and relinquished possession of the said property in favour of Defendant No. 8. Haji Liakat Momin made gift of da schedule properties to Defendant No. 12 under the hebanama executed and registered on March 5, 1963 and delivered possession. He made gift dha schedule properties to Defendant Nos. 9, 10 and 11 under the hebanama executed and registered on March 4, 1963 and delivered possession to them.

Further case of the contesting Defendant is that during his lifetime Haji Liakat Momin sold ta schedule properties to Defendant No. 16 under the sale deed executed an April 11, 1955 and registered on April 22, 1955. Subsequently Defendant No. 16 and Haji Liakat Momin remained in possession of ta schedule properties. Thereafter he conveyed 66 cents out of the said properties to Defendant No. 8 on the basis of the sale deed registered on August 4, 1966 for Denmohar, 66 cents to Defendant No. 12 under the hebanama registered on March 5, 1963 and 2.82 cents to Defendant Nos. 9, 10 and 11 under the hebanama registered on March 4, 1963. The remaining 75 cents of the said property remained in possession of Haji Liakat Momin and after his death Defendant Nos. 2, 3, 5, 9, 10 and 11 sold out the same to Defendant No. 16 who has been enjoying and possessing the same. Haji Liakat Momin was never guided by Soraban. Soraban and her sons never exercised undue influence or practised fraud nor they obtained the aforesaid deeds by exercising undue influence or fraud on Haji Liakat Momin. Those deeds are wholly valid, effective and enforceable against the Plaintiffs.

Defendant Nos. 8 to 12 have filed the written statement separately. They have not contested the suit. They have supported the claim of the Plaintiffs.

The learned Trial Court has come to the finding that Haji Liakat Momin executed those deeds under the influence of Defendant No. 1 and her sons and daughter and the said deeds were not executed by Haji Liakat Momin out of his own will. Consequently all the transfers by those deeds are held to be void. The learned Trial Court is of the view that Haji Liakat Momin did not transfer any of the suit properties at any time and he possessed all the properties in suit till his death. Accordingly the learned Trial Court has found that the Plaintiffs have acquired title to the suit properties by way of inheritance and they are entitled to partition of the suit properties to the extent of their respective shares. Ultimately the learned Trial Court has decreed the suit for partition in preliminary form.

Aggrieved, the contesting Defendants as Appellants have preferred the instant appeal challenging the findings of the learned Trial Court. It has been alleged inter alia by the Appellants that the learned Subordinate Judge failed to appreciate the respective cases from a totally incorrect standpoint which resulted in failure of justice, that in view of the admitted fact that Haji Liakat Momin executed the several deeds long before his death and after the execution and registration of the deeds in question the respective transferees took possession and were in possession till the date of the suit, that the learned Subordinate Judge was wrong in passing a decree without giving effect to the said solemnly executed documents, that the learned Subordinate Judge should have held on a proper consideration of the pleadings of the parties and evidence on record that the Plaintiff''s suit filed on December 9, 1970 challenging the several deeds executed by Haji Liakat Momin long before his death solely on the ground of undue influence was barred by limitation, that the reasoning of the learned Subordinate Judge in pronouncing that all the deeds in question were outcome of an undue influence by the third wife was perverse and based mainly on surmise, conjecture and irrelevant consideration, that the suit for partition ought to have been dismissed on a finding that Haji Liakat Momin did not leave any property which should be partitioned after his death, that the learned Subordinate Judge erred in holding that the deeds in question were void and the Plaintiffs were entitled to a decree for partition and that on proper consideration of the materials on record he should have dismissed the suit for partition with costs.

The following points arise for decision in the instant appeal:

1) Whether the learned Trial Court is Justified in holding that the deeds in respect of the suit properties were executed by Haji Liakat Momin under undue influence of his third wife Soraban Bibi and her sons and daughters and not out of his own will and that the said deeds are void ones and were never acted upon.

2) Whether the learned Trial Court erred in holding that Haji Liakat Momin did not transfer any of the suit properties and possessed the same till his death.

3) Whether the learned Trial Court is justified in holding that the Plaintiffs have acquired title to the suit properties by way of inheritance after demise of Haji Liakat Momin and have become co-shares in respect thereof.

4) Whether an issue regarding maintainability of the suit on the point of limitation should be framed and the suit should be remanded to the learned Trial Court for deciding the same after taking evidence of the parties on the said issue.

5) Whether the preliminary decree for partition passed by the learned Trial Judge is sustainable in the face of the materials on record.

Point Nos. 1, 2 and 3:

Being interlinked all these point vitally involved in this appeal are taken up together for consideration.

Admittedly the suit properties originally belonged to Haji Liakat Momin who married thrice. The name of his first wife was Bornia Bewa. Plaintiff No. 1 and original Plaintiff No. 3 are the daughters of Haji Liakat Momin by his first wife. The other heirs of Haji Liakat Momin through his first wife were impleaded as Defendant Nos. 12, 13, 15, 16, 17, 18, 19, 20 and 21. After the death of his first wife Haji Liakat Momin married Jainab Bibi. Plaintiff No. 2 is the daughter of Haji Liakat Momin through his second wife Jainab. Defendant Nos. 9, 10 and 11 are the sons of Haji Liakat Momin through his said second wife. Jainab the second wife Haji Liakat Momin was impleaded as Defendant No. 8 in the suit. It is an admitted fact that the said Haji Liakat Momin married Soraban after 5/6 years of his second marriage and his third wife Soraban was impleaded as Defendant No. 1 in the suit. The sons and daughter of Haji Liakat Momin through his said third wife were impleaded as Defendant Nos. 2, 3, 4, 5, 6 and 7 in the suit. Defendant No. 14 was impleaded as a party to the suit as he is alleged to have purchased a part of the suit properly from Haji Liakat Momin. The suit out of which the instant appeal has arisen is substantially a suit for partition on cancellation of certain deeds alleged to have been executed by the original predecessor-in-interest Haji Liakat Momin on the ground that Soraban the third wife of Haji Liakat Momin got those deeds executed by her husband after exercising undue influence on him. The deeds sought to be cancelled by the Plaintiffs-respondents are as many as 14 deeds executed on different dates between March 9, 1953 and January 11, 1967. It is quite evident from the materials on record of the suit properties are cancelled the Plaintiffs cannot claim any interest in the suit properties since by those deeds the properties in suit were transferred by Haji Liakat Momin to the Defendants-appellants.

The learned Trial Judge made an endeavour to find out the allegations of undue influence and fraud in the allegations of undue influence and fraud in the matter of execution of the said deeds by Haji Liakat Momin and ultimately arrived at the finding that those deeds were procured by the third wife and her sons and fraud upon the said Haji Liakat Momin. Indisputable is the facts that Haji Liakat Momin had vast landed properties and went to Mecca on pilgrimage and some of the deeds were executed by him before he left for Mecca and his remaining properties were disposition of by him after his return from Mecca. It appears that by several deeds he disposed of his landed properties both prior to and after the visit of Mecca. The transfers made by him are enumerated in the judgment of the learned Trial Court in the following manner:

Date

Transferees

Nature of deed

Ext.

January 28, 1969 B.S.

Jalaluddin & Aijuddin

HebabilEwaz

Ext. B

January 28, 1969 B.S.

Sahabuddin & Asimuddin

HebabilEwaz

Ext. C

November 25, 1960 B.S.

Jalaluddin & Aijuddin

Heba

Ext. E

December 28, 1961 B.S.

S. Jalaluddin & Aijuddin

Kobala

Ext. F

November 20, 1969 B.S.

Nasiruddin

Kobala

Ext. G

November 28, 1969 B.S.

Atahar Ali

Kobala

Ext. J

February 24, 1969 B.S.

Soraban

Kobala in lieu of prompt dower

Ext. K/6

Liakat Momin also transferred the following lands after his return from Mecca:

Date

Transferees

Nature of deed

Ext.

April 19, 1973 B.S.

Samsunnessa

Heba

Ext. D

September 24, 1973 B.S.

Asimuddin

Hebabilewaz

Ext. 11

September 24, 1973 B.S.

Jalaluddin & Ajiuddin

Hebabilewaz

Ext. 1

The learned Trial Court has pointed out that the deeds referred to above executed by Haji Liakat Momin in favour of the transferees would show on calculation that greater area of lands had been given to his third wife and her sons and daughters. The learned Trial Court has observed that Haji Liakat Momin had love and affection equally for all his wives and children and there was no reason for him to give more lands in favour of his third wife and the children. According to the learned Trial Court, this affords a good and reasonable presumption that Haji Liakat Momin had executed the deeds under undue influence of his third wife and her sons and daughters.

From the judgment of the learned Trial Court it further transpires that undue influence by the third wife Soraban Bewa upon her husband Haji Liakat Momin has been inferred because the husband was an old man and his third wife was young lady. The learned Trial Court pointed out that Defendant No. 1 was only 15/16 years at the time of her marriage with Haji Liakat Momin while the latter was an old man of 55/56 years. The learned Trial Court is of the view that this is a circumstance that affords a relationship between an old man and his young wife and in such case the latter would dominate the will of the former. It has further been observed by the learned Trial Court that when a man becomes old and feeble and has a young wife, he becomes entirely dependent upon such wife and in such case due to different of age of the wife has opportunity to dominate the will of her old husband. According to the learned Trial Court the conditions enumerated in Section 16 of the Indian Contract Act are fulfilled in the instant case and a presumption of undue influence by the third wife upon her old husband obviously arises.

Mr. Jyotirmoy Bhattacharjee the learned Advocate for the Appellants has challenged such findings of the learned Trial Court and contended that the learned Trial Judge ought not to have made such findings in absence of pleading regarding undue influence and fraud in the plaint itself. He has further contended that in order to vitiate any transaction on the ground of fraud and undue influence the Plaintiffs must give the particulars of fraud and/or undue influence as required under Order 6 Rule 4 of the Code of Civil Procedure. It has been urged by Mr. Bhattacharjee that in the instant case the particulars of fraud and undue influence are very much lacking and there is only a hint regarding fraud and undue influence in the plaint which is insufficient to come within the zone of consideration by the learned Court in view of the restrictions imposed under Order 6 Rule 4 of the Code of Civil Procedure. He has cited the case of Bishundeo Narain and Another Vs. Seogeni Rai and Jagernath, wherein at page 283 (para 25) the Supreme Court held as follows:

Now if there is one rule which is better established than any other, it is that in cases fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See Order 6 Rule 4, Code of Civil Procedure.

Mr. Bhattacharjee has further cited the case of Subhas Chandra Das Mushib Vs. Ganga Prosad Das Mushib and Others, wherein at page 881 (para. 10) the Supreme Court made the following observation:

Before, However a court is called upon to examine whether undue influence was exercised or not, it must scrutinize the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stess in the case of Ladli Prasad Jaiswal Vs. Karnal Distillery Co. Ltd. and Others, ) above referred to. In that case it was observed (at p. 295) (of SCR) : (at p. 1288 of A.I.R.):

A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised the manner of use of the influence and the unfair advantage obtained by the other.

Reference can be made in this context to the case of Afsar Sheikh and Another Vs. Soleman Bibi and Others, wherein at page 167 (para. 15) the Supreme Court observed as under:

While it is true that ''undue influence'', ''fraud'', ''misrepresentation'' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the Plaintiff was a simple old man of ninety who had reposed great, confidence in the Defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the first round, even before the first appellate court.

On perusal of contents of the plaint in the instant case we find that no particulars of fraud and undue influence as required under Order 6 Rule 4 of the CPC have been pleaded therein.

Mr. Priyabrata Mukherjee the learned Advocate for the Plaintiffs Respondents has supported the findings of the learned Trial Court and contended that Haji Liakat Momin was totally under the influence and control of his third wife Soraban Bibi and as such he could not exercise his right independently and by exercising undue influence upon him Soraban Bibi got the other deeds executed which are under challenge. He has further argued that there is no hard and fast rule that for description of fraud and undue influence any strict modality or proforma is maintained. He has drawn our attention to para. 3 to 9 of the plaint which according to him if read one after another will indicate that all the formalities required under Order 6 Rule 4 of the CPC have been complied with. He has cited the decision of the Supreme Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, wherein at page 5 (para 6) the Supreme Court held as follows:

The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order gain by another''s loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ext. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the Appellants has paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suite for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to paying fraud on the court. We do not agree with the observations of the High Court that the Appellants-defendants could have easily produced the certified registered copy of Ex. B-15 and the non-suited the Plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.

On consideration of the materials on record we are unable to agree with the contentions raised by Mr. Mukherjee. As mentioned hereinabove, no particulars of undue influence and fraud as required under Order 6 Rule 4 of the CPC have been pleaded in the plaint. The facts and circumstances of the case of S.P. Chengal Varaya Naidu Supra as cited by Mr. Mukherjee the learned Advocate for the Plaintiffs-respondents where the preliminary decree was obtained by playing fraud on the court have no manner of application to the instant case.

Mr. Mukherjee the learned Advocate for the Plaintiffs-respondents has cited the case of Yeswant Deorao Deshmukh Vs. Walchand Ramchand Kothari, wherein at page 19 (para 10) it has been held by the Supreme Court that in the very nature of things, fraud is secret in its origin or inception and in the means adopted for its success and each circumstances may not mean much, but taking all of them together, they may reveal a fraudulent or dishonest plan. It is no doubt settled principle of law that a fraudulent intention or dishonest plan may be revealed by all the circumstances taken together It is the cardinal principle of law that fraud or undue influence, as the case may be must be specifically pleaded in the manner required under Order 6 Rule 4 of the CPC and in absence of such specific pleading fraudulent intention or undue influence cannot be inferred.

The learned Trial Court, as it appears, has come to the conclusion that the Defendants failed to discharge their onus of proving that the deeds were executed by Haji Liakat Momin not under the influence of Defendant No. 1 and her sons and daughters and accordingly it has been held that the deeds are void deeds. It has escaped the notice of the learned Trial Court that the initial onus lies on the Plaintiffs to plead and prove the case of undue influence by the third wife Soraban Bibi upon her husband Haji Liakat Momin. In our view the learned Trial Court has judged the matter from wrong angle. The mere fact that an old husband has young wife does not indicate that the young wife will dominate the will of the old husband. Unfortunately in the instant case the presumption of undue influence made by the learned Trial Court primarily rests on presupposition that since Soraban Bibi was the young wife she was in a position to dominate the will of her old husband Haji Liakat Momin and got the deeds executed by the latter. Such presumption of undue influences as made by the learned Trial Court is not warranted by the materials on record.

If we turn to the evidence on record, we find Plaintiff No. 1 who was examined as P.W. 1 stated in her evidence that her father Haji Liakat Momin did not tell her at any time or give information to them that any property was transferred by him in different names by the deeds like Heba, Heba bill ewaz or sale. She has specifically stated in her evidence that her father did not execute any such deed. In cross-examination she stated that she did not know if the properties of schedule kha were transferred by her father to Defendant Nos. 4 and 5 by a registered deed of heba bill ewaz before he went to Mecca. There is nothing in the evidence of P.W. 1 Jinnat Bibi to indicate even in faint manner that Soraban Bibi the third wife of her father ever got the deeds executed by her father by exercising undue influence.

Defendant No. 9 who supported the case of the Plaintiffs was examined as P.W. 3. he deposed that his father Haji Liakat Momin never disposed of any of the suit properties by any registered deed of heba or heba bill ewaz during his lifetime. He further stated that he has no knowledge if his father had transferred the lands of Khanpur mouza in the name of this mother Joynab. It, however, transpires from his testimony that he along with Defendant Nos. 10 and 11 sold the orchard of Khanpur mouza by three registered sale deeds. He stated that he did not know if his father had transferred lands of mouza Bishnupur and Srirampur by registered heba to Defendant No. 2 to 5. If further appears from his testimony that Defendant Nos. 2 to 5 sold 2 acres of land of mouza Bishnupur and Srirampur to Defendant Nos. 9, 10 and 11 and afterwards they sold the entire 2 acres of lands to one Babir. His cross-examination clearly indicates that he along with his brother Defendant No. 10 sold the properties which they got from their father Haji Liakat Momin to the persons namely, Mainul Mian, Bibi Jaida Khatun, Kalu Momin, Ramijuddin Momin, Sk. Arman Ali, Sk. Ajimuddin, Rahaman Sk., Sk. Babil by several registered Kobalas. It is quite evident from this part of evidence of P.W. 3 that the transfer by Haji Liakat Momin was not only known to him but also acting upon such transfer of the land by Haji Liakat Momin they further transferred the property to others.

P.W. 4 is the elder brother of Plaintiff No. 1. It is his sworn testimony that his father Haji Liakat Momin was under the control of Defendant No. 8 and had no independent personality. Defendant No. 8 is Jainab Bewa the second wife of Haji Liakat Momin. This part of evidence of P.W. 4 has disastrously distorting effect on the case of undue influence by Soraban Bibi the third wife upon her husband, Haji Liakat Momin as propounded by the Plaintiffs Respondents. Cross-examination of P.W. 4 further indicates that his father Haji Liakat Momin provided him money amounting to Rs. 5,000/- or Rs. 6,000/- for investment in his business. Had it been the fact that Haji Liakat Momin was solely under the control of his third wife Soraban Bibi, he would not have parted with the said money in favour of P.W. 4 who is the son of his first wife.

The evidence of P. Ws as noted above suffers from inherent contradictions and glaring discrepancies for which no amount of credibility can be attached to the case of undue influence by the third wife Soraban Bibi upon her husband Haji Liakat Momin in the matter of execution of the deeds put forward by the Plaintiffs-respondents.

Defendant No. 2 Md. Jalaluddin who is one of the contesting Defendants was examined as D.W. 1. His evidence indicates in clear terms that his father Haji Liakat Momin delivered the deeds as well as the possession of the properties to each of them and after such deeds the wives, brothers and sisters started possessing specific quantity of land separately from each other. This part of his evidence has not been challenged in cross-examination. The materials on record make it quite evident that the Plaintiffs and the supporting Defendants had not only knowledge about the said deeds but also they obtained deeds of their respective lands.

Mr. Priyabrata Mukherjee the learned Advocate for the Respondents has urged that Defendant No. 1 Soraban Bibi the third wife of Haji Liakat Momin did not examine herself as a witness and avoided the entire thing which goes against her and the learned Trial Court has mighty made presumption that Haji Liakat Momin was under the influence of Soraban Bibi and for that reason he executed so many deeds. We do not find that such contention raised by Mr. Mukherjee has got any substance. In our view when the materials on record clearly indicate that Haji Liakat Momin executed the deeds on his own volition and not under the influence of this third wife or anybody else, non-examination of Soraban Bibi as witness during trial cannot improve the case of the Plaintiffs-respondents in any manner whatsoever.

Mr. Mukherjee the learned Advocate for the Plaintiffs-respondents has argued that even if it is accepted for the sake of argument that the aforesaid deeds were really executed by Haji Liakat Momin out of his own volition even then the deeds are invalid in law as even on January 11, 1967 i.e. two days prior to his death Haji Liakat Momin executed certain deeds. He has referred to Section 135 of Mulla''s Mohammedan Law which lays down that a gift made by a Mohammedan during marz-ul-maut or death illness cannot take effect beyond a third of his estate after payment of funeral expenses and debts unless the heirs give their consent, after death of the donor, to the excess taking effect nor can such a gift take effect. If made in favour of an heir unless the other heirs consent thereto after the donor''s death. Such argument of Mr. Mukherjee cannot prevail for a moment since no such case has at all been pleaded and there is not a shred of evidence to indicate any such state of affairs. That apart, the deeds, as already referred to, were executed by Haji Liakat Momin out of his own will when he was in sound state both physically and mentally.

Having regard to the above facts, circumstances and the materials on record we find that the learned Trial Court erred in holding that the deeds in respect of the suit properties were executed by Haji Liakat Momin under undue influence of his third wife Soraban Bibi and her sons and daughters and not out of is his own will. The evidence on record clearly indicates that the said deeds in respect of the suit properties were duly executed by Haji Liakat Momin on his own volition and after execution of the said deeds possession of the suit properties was given to the respective persons in whose favour those deeds were executed. Since those deeds were duly acted upon and possession of the suit properties covered by those deeds was delivered by Haji Liakat Momin after execution of those deeds, no such properties are liable to partition after demise of Haji Liakat Momin.

We find that the learned Trial Judge failed to analyse the evidence in proper perspective and erroneously came to the finding that Haji Liakat Momin did not transfer any of the suit properties and possessed the same till his death. Consequently the Plaintiffs Respondents cannot acquire any title to the suit properties by the inheritance after demise of Haji Liakat Momin claiming themselves to be co-sharers in respect thereof. So on the facts proved in evidence the claim for the partition of the suit properties as made by the Plaintiffs-respondent is utterly unsustainable. All these points accordingly in favour of the Appellants.

Point No. 4.

Mr. Bhattacharjee the learned Advocate for the Appellant has contended that the suit is barred by the limitation as it was instituted on December 9, 1990 i.e., long after execution of the deeds, which were executed during the period from 1953 to 1967. He has pointed out that no issues on the point of limitation was framed by the learned Trial Court. He has cited Smt. Bindu Sharma Vs. Ram Prakash Sharma and others, wherein at page 432 (para 16) it has been held by the Division Bench of Allahabad High Court that the Trial Court did not frame any issue on the point of limitation and recorded the finding on such vital issue straightway without calling upon the parties to lead the evidence on any such specific issue. In such context it has been observed that such finding of Trial Court cannot be substantiated in anyway.

In the instant case we find that no issue on the point limitations was framed by the learned Trial Court nor the Trial Court was moved for framing of any such issues. There is no finding of learned Trial Court on the point of limitations as well. However, it appears from the allegations made in para 11 of the plaint that August 12, 1970 was the date on which the Plaintiffs are alleged to have asked the Defendants to effect partition of the properties and that was the date on which the Plaintiffs are alleged to have come to know for the first time about the deeds in respect of the properties. Mr. Mukherjee the learned Advocate for the Respondents has contended on the other hand that no evidence has been adduced in the course of trial to show that the Respondent had Article 59 of the Limitation Act, 1963 prescribes the period of three years for institution of a suit to cancel or set aside an instrument when the facts entitling the Plaintiff to have the instrument cancelled or set aside first become known to him. Mr. Mukherjee has cited the case of Nakul Chandra Dutta Vs. Ajit Kumar Chakrabarty and Others, wherein at page 567 (para 8) it has been held that in case of an application to set aside a sale on the ground of fraud under Order 21 Rule 90 of the CPC limitation runs not from the date when the applicant has some hearsay knowledge of the factum of sale, but when he has a clear and definite knowledge of the fats constituting the fraud. It has been argued by Mr. Mukherjee that since there is no evidence to show that the Plaintiffs had any such clear and definite knowledge of the facts relating to the execution of the deeds prior to August 12, 1970; limitation would run from August 12, 1970 and not prior to that. It has been urged by Mr. Bhattacharjee the learned Advocate for the Appellant that if it is found that the suit is otherwise maintainable and the disputed deeds are liable to be cancelled then only further that enquiry with regard to bar of limitation is to be considered by following the provisions under Order 41 Rule 25 of the CPC which provides for remand of the issue of limitation after giving opportunity to the parties for adducing evidence with regard to the said issues.

Since we have already held that the deeds in questions with regard to the suit properties were duly executed and acted upon we do not find any necessity to frame any issues on the point of limitation and direct the learned Trial Court to take additional evidence required in terms of Order 41 Rule 25 of the Code of Civil Procedure. This point is accordingly disposed of.

Point No. 5.

For the foregoing reasons we hold that the preliminary decree for partition passed by the learned Trial Judge cannot be sustained in the face of the materials of record. The judgment and the preliminary decree for partition passed by the learned Trial Court are liable to set aside.

The appeal is accordingly allowed. The judgment and decree passed by the Sri P.R. Sinha Sarkar the learned Subordinate Judge, Malda, on April 30, 1982 in partition suit No. 53 of 1971 are set aside. The suit is dismissed. No order as to costs.

Let a copy of this judgment along with the L.C.R. be sent down to the learned Court below.

Xerox certified copy of the judgment, if applied for, be given to the parties after observing the required formalities.

Later on

Mr. Murary Chakraorty, for the Respondent.

The learned advocate for Respondents prays for a stay of operation of the order. The prayer is considered and rejected.

Samaresh Banerjea, J.

I agree.