(Civil)
Nazmun Ara Sultana J
Md Imman Ali J
Md Nizamul Huq J
Altab Hossain Sikder and others ……….
………..Appellants
vs
Abdul Malek Sikder and others…………….
…….. … Respondents
Judgment
August 30th, 2016
Registration Act (XVI of 1908)
Section 28(2)(b)
Any third party who had no notice of the transaction is not precluded from challenging the validity of a deed to which he is not party and which was fraudulently registered. …..(21)
In the instant case the plaintiffs are not party to the deed in question and were totally unconnected at the time of the deed. Indeed, when it was created they were not the heirs of the donor. At the time of execution and registration of the deed the donor had a surviving wife and brothers who would have been his heirs. The plaintiffs were not even in contemplation of inheriting the property if the gift had not been made or the transaction had been invalidated at that time. They knew nothing of the heba-bil-ewaz. In hindsight it is seen that the fraudulent registration by inclusion of the fictitious land has affected the plaintiffs’ interest. In our view the plaintiffs are third parties so far as the heba-bil-ewaz deed is concerned and their right to challenge the deed is not barred under Section 28(2)(a) and has been protected by Section 28(2)(b) unless there is evidence that the heirs were in collusion with the donor in the fraud committed upon the statute, they would not be precluded from challenging the validity of the deed in question. .. …. (26 & 27)
Bazlur Rahman vs Sadu Mia, 45 DLR 391; Abdul Kader vs Secretary, Election Commission, 58 DLR (AD) 71; City of Victoria vs Bishop of Vancouver Island, AIR 1921 PC 240 and Syed Kawsar Ali vs Gahar Kazi, 37 DLR (AD) 177 ref .
Abdul Quayum, Senior Advocate with Md Ali Reza, Advocate Advocate-on-Record-For the Appellants.
Abdul Wadud Bhuiyan, Senior Advocate-Amicus Curiae.
Judgment
Md Imman Ali J : This civil appeal by leave is directed against the judgement and order dated 7-8-2006 passed by a Simple Bench of the High Court Division in Civil Revision No. 6698 of 2001 discharging the Rule.
2. The appellants as plaintiffs filed Title Suit No. 117 of 1998 in the Court of Assistant Judge, Muladi, Barishal seeking declaration that the deed of heba-bil-ewaz dated 23-5-1966, as stated in the ‘Ka’ schedule of the plaint, is illegal, void and not binding upon them. They stated, inter alia, that the suit property described in schedule ‘Kha’ to the plaint belonged to Saizuddin Sikder and his only daughter having predeceased him without any issue, after his death the suit property was inherited by his wife as well as full brothers Abul Hashem Sikder and Raham Ali Sikder, who used to live in the same mess. Then the wife of Saizuddin died without leaving any issue. Raham Ali died leaving behind sons, defendants Nos. 1 and 2 Abdul Malek and Shajahan and also defendant Nos. 4-13. Raham Ali, in order to cheat his younger brother Abul Hashem, just 10 days before the death of Saizuddin took Saizuddin to Barishal on the plea of his treatment and then he took him to Rahmatpur Sub-Registry Office and by inserting a fictitious property allegedly situated within Babugonj Police Station, fraudulently got the deed of heba-bil-ewaz dated 23-5-1966 executed and registered showing transfer of the suit property in favour of Afazuddin, Malek Sikder, Shajahan Sikder, his three sons, and Renu Bibi, the live-in daughter of Saizuddin. Then Abul Hashem also died leaving behind his sons, plaintiff Nos. 1-3 and widow, plaintiff No.4. The plaintiffs on 16th Baishak 1405, for the first time came to know about the above deed of heba-bil-ewaz when the defendants claimed exclusive ownership over the suit property on the strength of the above deed of heba. Until then the above deed of heba was kept secret, and further, there was no ewaz and the plaintiffs have been in possession of the entire property of Saizuddin. Further, Saizuddin having remained in and bed-ridden since three months before his death, was not capable of understanding anything, and hence the deed of heba-bil-ewaz is also void.
3. Defendant Nos. 1, 2 and 5 contested by filing written statement contending that Saizuddin and Abul Hashem were not full brothers and Saizuddin executed the deed of heba-bil-ewaz voluntarily; Abul Hashem misbehaved with Saizuddin Sikder and did not look after him; further the plaintiffs as heirs of Saizuddin are estopped from challenging the above deed on the ground of alleged fictitious land of Babugonj Police Station therein, and further that the possession of the suit property was delivered to the defendants and the suit is barred by limitation and the plaintiffs are also not in possession of the suit land.
4. The Assistant Judge, after hearing the parties and considering the materials on record decreed the suit. Then the defendants filed Title Appeal No. 203 of 2000 in the Court of District Judge, Barishal. On transfer to the Court of Sub-ordinate Judge, Artha Rin Adalat the appeal was heard and allowed. Against the aforesaid judgement and decree of the Appellate Court the plaintiffs filed Civil Revision No. 6698 of 2001 before the High Court Division and obtained Rule, which upon hearing was discharged.
5. Being aggrieved by the said judgement and order of the High Court Division, Civil Petition for Leave to Appeal No. 1680 of 2006 was filed by the plaintiffs-appellants and leave was granted to consider the following grounds:
“I. Whether the High Court Division committed error in affirming the judgement of the Appellate Court and the finding of the High Court Division that the petitioners, as heirs of Saizuddin are precluded from challenging the deed of heba-bil-ewaj is erroneous as the petitioners are neither transferors nor transferees in the above deed and they being third party to the said deed, their right is not at all affected by the said deed.
II. Whether the High Court Division also committed error of law in finding exclusive possession of the defendants in the suit property and in not considering that the suit property is joint property and was never partitioned.
6. Mr Abdul Quayum, learned Senior Advocate appearing for the appellant submitted that the High Court Division did not consider that no evidence was lead as to the exchange of ewaz and the appellate court misread the evidence of DWs 1 and 2 and exhibit-K(1)-K(2) was not considered, and thus came to the wrong conclusion that the document was acted upon, and hence committed an error of law occasioning failure of justin’. He further submitted that the finding that the document is binding upon the heirs of the parties to the documents and thus it is binding upon the plaintiff- petitioners who have challenged the documents as fraudulent, is based upon misconception of law, and thus the High Court Division committed error of law in affirming the same. The learned Advocate submitted that the appellate Court in finding that plaintiff-petitioners are precluded from challenging the document as heirs, although they are neither vendor nor vendee, being third parties to the document and affected by the document, thus committed error of law occasioning failure of justice. He finally submitted that the High Court Division committed error of law occasioning failure of justice in finding exclusive possession in favour of the respondents and failed to consider that the suit property is joint property and it was never partitioned.
7. None appeared for the respondents.
8. Mr Abdul Wadud Bhuiya, learned Senior Advocate appearing at the request of the Court as amicus curiae, made submissions in support of the impugned judgement and order of the High Court Division. He submitted that Section 28(a) of the Registration Act precludes a party to the deed from challenging its veracity and Section 28(b) aids a third party, but the heirs of the transferor are not independent and derive their right from him. So, they cannot challenge the deed of heba-bil-ewaz as fraudulent. He submitted that the heirs stand on the same footing as the transferor and cannot take benefit of section 28 of the said Act. He further submitted that section 115 of the Evidence Act also provides that representative of the executant cannot deny the transfer, even though the executant may have acted fraudulently. In support of his contention, Mr Bhuiyan referred the decision in Bazlur Rahman vs Sadu Mia, 45 DLR 391.
9. Section 115 of the Evidence Act provides as follows:
“115. Estoppel-When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
Illustration: A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.”
10. We may firstly deal with the question of possession of the parties in the suit land since that was a ground upon which leave was granted by this Division. The land was conveyed to the defendant by Shaijuddin by the impugned deed of Heba-bil-ewaz on 23-5-1966, some 32 years before the filing of the suit. DW 1 admitted that the land was not mutated in the names of the recipients. The trial Court considered the rent receipts adduced by the defendants and also the deposition of DW 1 in cross examination that the money for the rent was paid by all the co-sharers in accordance with their shares. He also admitted that Aynal Hawlader had established his homestead on plot No. 563/615 of Khatian No. 267 and that
Mostafa Sikder established his homestead on the plaintiffs’ portion of the said Khatian. DW 1 also admitted that he paid Taka 12,000 to the plaintiffs in respect of sale of trees from the land of the heba-bil-ewaz. After considering the above aspects and the evidence of the other witnesses, the trial Court concluded that the land was in ejmali possession.
11. The appellate Court, on the other hand did not discuss the possession of the parties in the suit land. It was simply stated that DW 2 deposed to the effect that the defendants possess the land transferred by Saijuddin and there was no reason to disbelieve his evidence. But the appellate Court did not advert to or reverse the findings of the trial Court with regard to the aspect of possession of the land in question.
12. The High Court Division noted that the appellate Court found the defendants in exclusive possession of the suit property. However, we do not find any such specific finding of the appellate Court. We also do not find any basis of the observation that “the appellate court properly held that the plaintiffs failed to prove that they had/have been in possession of the suit property in ejmali with the defendants.” We note that the High Court Division also did not advert to or reverse the triat Court’s assessment of the evidence with regard to possession.
(To be continued)
After assessing the evidence, the High Court Division came to a finding that “the defendants had/have been in exclusive possession of the Ghar which is situated in another Bhiti and the plaintiffs were never in possession thereto.” This finding in no way indicates the exclusive possession of the defendants in the 2.11 acres of the property gifted by Saijuddin. Hence the finding of exclusive possession of the defendants in the suit property is not sustainable.
13. Now let us turn to the substantive issue of locus standi of the plaintiffs to challenge the validity of the impugned heba-bil-ewaz deed. Simply put, the argument on behalf of the defendants, as also supported by Mr Abdul Wadud Bhuiya, is that Saijuddin, being the executant of the deed could not challenge its validity claiming its fraudulent registration as provided by Section 28(2)(a) of the Registration Act, and the plaintiffs being heirs of Saijuddin have no locus standi to challenge the validity of the deed on the same ground. Mr Bhuiya has additionally put forward the argument that under Section 115 of the Evidence Act the plaintiffs being in a representative capacity are estopped from denying the validity of the registration effected by Saijuddin, the executant of the deed.
14. Undoubtedly the deed of heba-bilewaz conlains 01 decimal of land of plot No. 120 within Khatian No. 80 of Kedarpur Mouja under Babugonj Police Station which is within the jurisdiction of Rahmatpur Sub-registry Office. It was the inclusion of this 01 decimal of land which enabled the executant to register the land at the Rahmatpur Sub-registry Office in spite of the fact that the remaining 2.10 acres of land detailed in the schedule of the deed is situated within the jurisdiction of Muladi Subregistry Office. It was alleged by the plaintiffs that Saijuddin in fact did not own the land of Khatian No. 80 of Kedarpur Mouja and hence the registration of the deed in Rahmatpur Subregistry Office was illegal being violative of S ection 28 of the Registration Act.
15. Section 28 of the Registration Act provides as follows:
“28. Place for registering documents relating to land (1) Save as in this Part otherwise provided, every document mentioned in 1. Section 17, sub-section (1), Clause (a), (b), (c), (d) and (e), Section 17, sub-section (2), and Section 18, in so far as such documents affects immoveable property shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or major portion of the properly to which such document relates is situate:
Provided that where the major portion of such property is not situate within one sub-district the document shall be presented for registration in the office of the Sub-Registrar within whose sub-district any portion of such property is situate.
(2) Notwithstanding anything contained in sub-section(l),-
(a) after a document is registered, no party thereto shall be entitled to question the validity of its registration on the ground that the property which purported to give jurisdiction to the Sub-Registrar to register it either did not exist or was fictitious or insignificant or was not intended to be conveyed; and
(b) a document the registration of which is secured by the inclusion of a nonexistent, fictitious or insignificant portion or item shall not in any manner affect the rights of a person who was not a party thereto and acquired rights in the property without notice of the transaction to which such document relates.”
16. The registration clearly falls foul of the provisions of the Registration Act. It is undoubtedly a case of fraud on the Registration Act. The defendants did not seek to deny the fact that the land of Khatian No. 80 was not owned by Saijuddin. They took the stand that when any deed is registered in a sub-registry office which does not have the jurisdiction to register such deed, any party to that deed would not be entitled to cancel that deed. It was further contended that as the heirs of Saijuddin, the plaintiffs could not challenge the deed as provided by Section 28(2)(a) and (b).
17. The trial Court rejected the contention of the defendants on the ground that the plaintiffs or their predecessors were not party to the deed in question.
18. We may point out at this stage that the finding of the trial Court that since two of the beneficiaries of the heba deed were minors, the deed in their favour was void. This is clearly a misconception of law and was rightly reversed by the appellate court.
19. However, the live issue in this case is whether or not the heirs of the executant can challenge the deed which was registered by committing fraud on the statute. The plaintiffs are not party to the deed. The question is whether the heirs of the executant who registered the deed, and who stand to benefit from the fraud of the donor are contemplated by the provisions of Section 28(2)(a) and (b).
20. The learned Advocate for the plaintiff-appellants argued that the words of the statue are to be given their natural and ordinary meaning. In support of his contention he referred to the decision in Abdul Kader vs Secretary, Election Commission, 58 DLR (AD) 71. Hence, he submitted, the word ‘party’ to the deed would cover only the donor and donee since they are the persons who actively created the deed and would benefit from the execution and registration of the deed. Everyone else would be a third party as mentioned in Section 28(2)(b). He submitted that had it been the intention of the statute to bar any heir or representative of the donor from challenging the deed then it would have been specifically provided in the statute. He also submitted that the plaintiffs’ and donor’s interests are conflicting and hence the provisions of Section 28(2) are not applicable in the facts of the instant case.
21. The provision of law in fact reflects the common law principle that no man shall take advantage of his down wrong. Having illegally registered the deed, which at the time suited his purpose, the donor would not be permitted by law to renege from his liabilities under it by claiming that what he did was illegal or that the deed was invalid. In these circumstances the law cannot impinge upon the rights of any other person who did not play any part in the fraud. Moreover, the tenor of Section 28(2)(b) is that any third party who had no notice of the transaction is not precluded from challenging the validity of a deed to which he is not party and which was fraudulently registered.
22. The learned Advocate for the appellants referred us to the decision m Corporation of the City of Victoria vs Bishop of Vancouver Island, AIR 1921 PC 240, where it was held, “In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense.”
23. We are of the view that if the wording of a statute is not in any way ambiguous, then the natural meaning is to be given to the words used. We find no difficulty in understanding the meaning of the statutory provision before lis. The intention of the statute is clearly to bar the parties to the fraudulently registered deed from challenging its validity when they themselves took the illegal path. However, the persons other than the actual parties are not precluded from challenging the fraudulently registered deed.
24. We find support for our view in the decision in Syed Kawsar Ali ‘us Gahar Kazi reported in 37 DLR (AD) 177. In that case also a fictitious plot of land was included in a sale deed in order to give jurisdiction to and enable registration in a particular Sub-registry office. The trial Court found the deed to be fictitious and the appellate Court held that the deed which included non-existent property only to give jurisdiction to the particular Sub-registry office was void under Section 28 of the Registration Act. The High Court Division reversed the decision finding that there was no evidence that the transferee had any collusion with the vendor in including fictitious land and hence the transferee’s right was not invalidated. This Division quoted the observation of the appellate court as follows:
“It is only the parties to document be bound by kabala containing non-existent or fictitious land only to attract the jurisdiction of a Sub Registration office within meaning of sub-clause (a) of clause (2) of Section 28 of the Registration Act. According to true interpretation of sub-clause (b) of Section 28 of Registration Act as it stands now after the amendment in 1962 parties not being parties to the kabala for a fictitious or non-existent land can reasonably show that kabala like Ext A is invalid for all intents and purposes.”
25. After analysing several decisions of the Subcontinent, their lordships of this Division held,
“The expression “no party” means defendant Nos.1 and 2 but not defendant No. 3 because he has not been mentioned here. In other words it was the vendor and vendee of Ext A namely, defendant No.1 and defendant No.2 who are precluded from questioning the validity of registration on the ground that the property did not exist or was fictitious or insignificant or was not intended to be conveyed and the registration was invalid.”
26. In the instant case the plaintiffs are not party to the deed in question and were totally unconnected at the time of the deed. Indeed, when it was created they were not the heirs of the donor. At the time of execution and registration of the deed the donor had a surviving wife and brothers who would have been his heirs. The plaintiffs were not even in contemplation of inheriting the property if the gift had not been made or the transaction had been invalidated at that time. They knew nothing of the heba-bil-ewaz. In hindsight it is seen that the fraudulent registration by inclusion of the fictitious land has affected the plaintiffs’ interest. In our view the plaintiffs are third parties so far as the heba-bil-ewaz deed is concerned and their right to challenge the deed is not barred under Section 28(2)(a) and has been protected by Section 28(2)(b).
In view of the above discussion, we are of the opinion that unless there is evidence that the heirs were in collusion with the donor in the fraud committed upon the statute, they would not be precluded from challenging the validity of the deed in question. In this case there is no such evidence. Accordingly, the appeal is allowed and the judgement and order of the High Court Division is set aside. There will be no order as to casts.
