Mohammad Abdul Sami Chisti and others vs Mohammad Hussain and others

Nigam, J.C.

Mohammad Hussain filed Civil Suit No. 172 of 1940 against Sm. Maqbulan and Abdul Shakur praying for a declaration that the ''waqf'' deed, dated 15-6-1939 and the sale-deeds, dated 15-3-1940 and 2-4-1940, were invalid, fictitious and ineffective against the plaintiff. He also claimed possession by partition of his �th share in the properties in suit. The suit was contested and the learned IInd Additional Subordinate Judge holding that the documents mentioned in para 4 of the plaint were fictitious and invalid, that sale-deeds mentioned in para 6 were without consideration, that decree No. 75 of 1940 was obtained collusively, and therefore not binding on the plaintiff, that the child born of defendant No. 1 was not a legitimate child, that the suit was properly valued and was not bad for non-joinder of parties that the sale-deed executed by defendant No. 1 was invalid and that the minor defendants were not bona fide purchasers of the consideration, decreed the plaintiff''s suit with costs.

A commissioner was appointed to partition the properties. Against that judgment and decree, Civil Appeal No. 114 of 1944 was presented to the District Judge, by the legal representatives of defendant No. 2. The appeal was disposed of by the learned District Judge on 28.12-1949 and the learned District Judge upheld the judgment and decree of the learned trial Judge. Now the legal representatives of Abdul Shakur, defendant No. 2, have come up in second appeal. I have heard the learned counsel for the appellants and the learned counsel for respondent No. 1. Learned counsel for respondents 2-4 has not addressed me.

The first contention of the learned counsel for the appellants is that the finding of the learned District Judge that sale-deed Ex. P/3 is without consideration is vitiated by the fact that he did not notice evidence and paid no consideration to the registration endorsement on the document. The learned trial Judge said (page 119 of the paper-book). ''The amount was not paid before the Sub-Registrar, which would have settled the matter if paid before him.'' The learned counsel has drawn my attention to Ex. P/3 at page 71 of the paper-book. The learned counsel refers me to the passage

Rupees two thousand and two hundred and fifty in Government currency Notes were paid to the executant Qudratullah in my presence by Abdul Shakur.

Thus it appears to me that if the attention of the learned Subordinate Judge had been drawn to this fact, he may not have held the deed Ex. P/3 to he a fictitious transaction.

The learned counsel for respondent No. 1 has not challenged that this question cannot be considered in this second appeal. He has, however, urged that the conclusion that there was no consideration is justified on the evidence. The learned counsel points out that the finding that Ex. 2/1 is not a genuine or a reliable document has not been challenged. He has also pointed out that though the plaintiff in suit No. 75 of 1940 had relied on an oral agreement made on 11-6-1939, Ex. D/2(1) though alleged to be really a receipt for Rs. 250/- is really a written agreement for sale.

The learned counsel for respondent, has on the other hand, pointed out that this receipt i.e., EX. D/2(1) was filed along with the plaint of suit No. 75 of 1940. The learned counsel for respondent No. 1 has urged that though the ''waqf deed was executed on 15-6-1939, just four days after the execution of Ex. D/2(1), the ''waqf'' deed made no mention of this agreement. He also urged that suit No. 75 of 1940 was not for specific performance but only for a declaration that the ''waqf deed was ineffective as against the agreement of sale. The learned counsel for the appellants has urged that the agreement for sale provided a period of one year during which the sale could be executed and therefore the prayer for specific performance was not made. The learned counsel for respondent has also pointed out that suit No. 75 of 1940 was instituted on 26-3-1940 and decided on admission on 1-4-1940. This may prove collusion but is no evidence of absence of consideration. Rs. 2,250/ were paid before the Sub-Registrar. Then Qudratullah acknowledged receipt of the sum of Rs. 250/- on an earlier date.

There is no allegation much less proof that this amount of Rs. 2,250/- was returned to Abdul. Shakur. There is no evidence suggesting that Abdul Shakur could in any manner influence the ''will'' of Qudratullah. In, these circumstances, I am of opinion that there is no evidence to suggest that no consideration passed. As such, the sale-deed dated 2-4-1940 may be a collusive document but is certainly not a fictitious one.

Qudratullah had a complete right to transfer his properties. The plaintiff sought to avoid this transfer on the allegation that it was made to defeat the legitimate claims of the plaintiffs, but the plaintiff had no right vested in him at that time. As he got a right in the property as a successor to Qudratullah, he could challenge the transaction only if a fraud had been committed on Qudratullah. That is not alleged.

As regards the allegation of undue influence, under s. 60, Contract Act, the sale would be deemed to be induced by undue influence only if one of the parties is in a position to dominate the will of the other and actually uses that position to obtain an unfair advantage in a case. There is no evidence that any unfair advantage was actually secured. Rs. 250/- was the consideration for the sale. The plaintiff has himself valued his 3/4th share of the properties left by Qudratullah at Rs. 450/-. In these circumstances, it cannot be urged that the value of the properties sold to Abdul Shakur exceeded Rs. 2,500/-.

No other point has been pressed before me.

I am, accordingly, of opinion that this appeal must be allowed. I accept it. The decree granted to the plaintiff will be amended and the plaintiff will not be granted any declaration in respect of the sale-deed dated 2-4-1940. He will, however, be entitled to a declaration in respect of'' the ''waqf deed dated 15-6-1939 and the sale-deed dated 15-3-1940 and to declaration of his share (in properties other than those covered by sale-deed dated 15-3-1940) as granted by the learned trial Judge. Further proceedings in partition will be taken as directed by the trial court. The appellants will get their costs throughout.