Appellate Division
(Civil)
Md Abdul Wahhab Miah J
Muhammad Imman Ali J
Farida Begum …………..
……..Appellant
vs
Md Nurul Alam………
………. Respondent*
Judgment
September 16th, 2015
Non Agricultural Tenancy Act (XXIII of 1949)
Section 24
A preemptor shall be entitled to preempt the case land if he can prove that he is a cosharer in the case land and the same has been filed within time with the statutory deposit, of course he has to show that the necessary parties have been impleaded in the application. …… (10)
Mahmudul Islam with Probir Neogi. Senior Advocate Instructed by Zainul Abedin, Advocate-on- Record-For the Appellant.
Syed Mahbubur Rahman, Advocate-on-Record-For the Respondent.
Judgment
Md Abdul Wahhab Miah J : This appeal by leave, is from the judgment and order dated the 4th day of August, 2009 passed by a Single Bench of the High Court Division in Civil Revision No. 2366 of 2008 making the Rule absolute.
2. Facts necessary for disposal of this appeal are that the appellant as the pre-emptor filed Miscellaneous Case No., 3 of 1998 in the Court of Assistant Judge, Chatkhil, Noakhali for pre-emption of the case land under section 24 of the Non-Agricultural Tenancy Act, 1949 on the averment, inter alia, that her husband, opposite party No. 5 (in the miscellaneous case, hereinafter referred to as opposite party No.5 as he has not been made a party in the appeal) became the owner of some land appertaining to DS Khatian Nos. 94, 92, 88, 20 and 38 of Mouza Chatkhil by purchase from Ram Charan Dey and others. Opposite party No. 5 purchased 0.07 acre land from Plot No. 512, 0.05 acre land from Plot No. 513 of DS Khatian No.38 in his own name and 53 acre land of DS Plot No. 395 appertaining to DS Khatian No. 38 in the name of his first wife, Syedernessa, by registered deed from Bipin Chandra Dey. He sold some land so purchased and got his name mutated in respect of the land measuring 2.87 acres including 0.62 acre land appertaining to DS Khatian No. 38, DS Plot No. 395, 0.07 acre land of Plot No. 512 and 0.05 acre land of Plot No. 513 in Mutation Case No. 202 of 1977-78 and created separate holding Nos. 142/139 in his name and in the name of his first wife, Syedernessa. On the death of Syedernessa, opposite party No.5 inherited 1/4th share of her property measuring 0.13-1/4th acre and her son, opposite party No.2 (in the miscellaneous case, hereinafter referred to as opposite party No.2 as he has not been made a party in the appeal) inherited 1/2 share covering 0.26-1/2 acre land and daughter, opposite party No. 4 (in the miscellaneous case) inherited 1/4 share measuring 0.13-1/2 acre land. Opposite party No. 5 by a registered deed of gift dated 31-7-1986 transferred 0.66-1/2 acre land from plot Nos. 397 and 398, 0.09 acre land from plot No. 395,0.12-1/2 acre land from plot No. 394, 0.07-1/2 acre land from plot No. 399 and 0.24-1/2 acre land from plot No. 397 to her second wife, the pre-emptor. In this way, the pre-emptor became co-sharer’ and contiguous land owner of the case land. The preemptor came to know that opposite party No.2 sold the case land to the preemptee, the respondent herein, by a sale deed dated 24-7-1997 behind her back. Thereafter, the pre-emptor obtained the certified copy of the said deed on 12-2-1998 and came to know definitely about the transfer in question; hence she filed the case.
3. The pre-emption application was contested by the preemptee by filing a written objection contending, inter alia, that the preemptor was not a co-sharer in the case land and the case was bad for defect of party. After the purchase, he spent Taka 50,000 for the development of the case land.
The deed of gift dated 31-7-1986 was a collusive one and the same was not acted upon. The pre-emptor’s husband, opposite party No.5, sold the case land covered by the deed of gift to other persons, he made a deed of exchange on 6-6-1993 with one Mostaque Ahmed Chowdhury in respect of 0.09 acre land of case plot No.395 who exchanged the said land with the preemptee by a deed of exchange dated 12-3-1995 resulting the lose of co-sharership of the preemptor in the case land, so the pre-emption application was not maintainable.
4. On conclusion. of hearing of the miscellaneous case, the learned Assistant Judge by his order dated 11-7-2001 dismissed the case. Against the order of the learned Assistant Judge, the pre-emptor filed Miscellaneous Appeal No. 77 of 2001 before the District Judge, Noakhali. The learned Additional District Judge, 2nd Court, Noakhali, hearing the appeal by his judgment and order dated 3-6-2008 allowed the appeal, set aside the order of the learned Assistant Judge and allowed the application for preemption. Against the judgment and order of the Appellate Court, the preemptee filed Civil Revision No. 2366 of 2008 before the High Court Division and a learned Judge of the Single Bench by the impugned judgment and order made the Rule absolute, set the judgment and order of the Appellate Court and restored those of the trial Court. Against the judgment and order of the High Court Division, the pre-emptor filed Civil Petition for Leave to Appeal No. 270 of 2010 before this Division and leave was granted to consider the submissions made by the learned Counsel on behalf of the appellant giving rise to this appeal. The submissions were to the following effect:
“Mr Mahmudul Islam,. the learned Senior Advocate appearing on behalf of the petitioner, submits that the High Court Division was wrong in making the Rule absolute on misconception of law as to Muslim Heba (gift) inasmuch as conditions, if any, incorporated in the gift deed, if appear to be illegal, such conditions, not the gift would be void. He further submits that the High Court Division was wrong in making the Rule absolute travelling (sic) beyond the scope of revisional jurisdiction disturbing the findings of the appellate court on consideration of the evidence on record. He further submits that the deed of gift dated 31-7-1986 (exhibit-4) being a registered document and none of the opposite parties in the pre-emption case including the donor executant (opposite party No.5) and pre-emptee having assailed the said deed, the case of the petitioner to be a cosharer in the case land remain unshaken and, as such, the High Court Division was wrong in making the Rule absolsute,”
5. Mr Mahmudul Islam, learned Counsel, for the appellant, has reiterated the submissions on which leave was granted and in support of his submission, he has referred to section 164 of Mohammedan Law by Mul1a.
6. Syed Mahbubur Rahman, learned Advocate-on-Record, for the preemptee respondent, on the other hand, has supported the impugned judgment and order,
7. From the order of the learned Assistant Judge, it appears that he found that the preemption application was filed within time and that there was no defect of party, he rejected the preemption application on the finding that the preemptor was not a co-sharer in the case land, so he was not entitled to preempt the case land.
The reason for holding so was that the deed of gift dated 31-7-1986, the basis of the claim of the preemptor as a co-sharer in the case land was not an actual deed of gift and the same was not acted upon, as the donor (opposite party No.5) made the gift on two conditions (i) that the donee would not be able to transfer the land of the deed during the life time of the donor and thus the donee did not become the absolute owner of the land transferred by the deed of gift, (ii) the donor by a deed of ewaznama being No.2650 dated 6-6-1993 exchanged 0.09 acre land from plot No.395 gifted to the pre-emptor along with other land to Mushtaque Ahmed Chowdhury and from whom the preemptee purchased a portion of the case plot and thus he became a co-sharer therein. The Appellate Court being the last court of fact considering the pleading of the parties, the evidence on record, particularly, the deed of gift made by opposite party No.5, held that the preemptor was the owner of 0.09 acre land of case plot No.395 and rejected the finding of the learned Assistant Judge that she was not a co-sharer in the case land. The Appellate Court argued that the hebanama was made 10 years before of the kabala under pre-emption dated 24-7-1997 and during this long period, none filed any suit challenging that the heba deed was not acted upon, rather the pre-emptor tiled partition suit challenging the deeds of the others. The Appellate Court further held that the preemptee failed to file any deed to show that he was a co-sharer in the case plot No.395 prior to the kabala under preemption. The Appel1ate Court further found that since the preemptor became the owner of 0.09 acre land out of 0.62 acre land in the case plot No. 395 by way of heba dated 31-7-1986, where she along with her husband has been living, she was entitled to preempt the case land and the trial Court failed to appreciate the above factual aspect of the case and dismissed the case making some irrelevant comments.
8. In view of the pleading of the parties, the findings of the Courts below, the judgment and order of the High Court Division and the leave granting order, the crux issues involved in this appeal are whether the conditions given in the deed of gift made by opposite party No. 5 in favour of pre-emptor were void or whether, because of such conditions inserted in the deed, it could be said that the deed of gift was not acted upon or whether” opposite party No. 5 could exchange the land transferred to the donee, i.e. the pre-emptor by the deed of gift to others. To answer the issues, we can straightway refer” to section 164 of Mulla’s Mohammedan Law, 20th Edition, wherein it has been clearly stated that “When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no conditions were attached to it.” Quotation has also been given from Baillie that “All our masters are agreed that- when one has made a gift and stipulated for a condition that is fasid or invalid, the gift is valid and the condition is void.”
9. In view of the above provision of the Mohammedan Law, the conditions inserted in the deed of gift that during the life time of the donor (opposite party No .. 5), the donee (the preemptor) would not be able to any other conditions, if there be, were void and the deed of gift took effect immediately and the pre-emptor became a co-sharer in the case land. After the transfer of 0.09 acre land of the case plot, the donor divested himself of all his right, title and interest therein and he had no right to exchange the same with the land of one Moshtaque Ahmed Chowdhury as claimed by the preemptee and by such exchange, if made, as claimed by the preemptee the title passed to the pre-emptor was in no way affected.
The trial Court and the High Court Division failed to consider the said legal position and thus fell into an error in holding that because of the conditions put in the deed of gift, the pre-emptor did not become the absolute owner of 0.09 acre land of the case plot; so she. did not become the co-sharer in the case plot and on such erroneous view, rejected the application for preemption.
The Appellate Court correctly appreciated the law with reference to the facts of the case and held that the pre-emptor was a co-sharer in the case plot and therefore, she was entitled to preempt the case land. In the context, it may be stated that the trial Court gave clear finding that the pre-emption application was filed within time and there was no defect of party which was affirmed by the Appellate Court. In the facts and circumstances of the case, the Appellate Court rightly considered the fact that the gift in question was made 10 years before of the kabala under pre-emption and none filed any suit challenging the deed on the ground that the same was not acted upon.
10. From the order of the trial Court, it appears that one of the reasons assigned by it to reject the application for pre-emption was that the case land was barely needed by the preemptee, but section 24 of the Act has not contemplated any such novel concept a authorising a Court to reject the prayer for preemption.
According to section 24 of the Act, a pre-emptor shall be entitled to preempt the case land if he can prove that he is a co-sharer in the· case land and the same has been filed within time with the statutory deposit, of course he has to show that the necessary parties have been impleaded in the application. It further appears that the trial Court also travelled beyond the pleading of the parties and made unnecessary exercise about the ownership of opposite party No. 5 in the case plot, although the preemptee never challenged his ownership and admittedly he purchased 53 acre land of case plot No.395 in the name of his first wife, Syedernessa by a registered kabala from Bipin Chandra Dey and after death of Syedernessa, opposite party No.5 and opposite party No.2 inherited 0.13-1/2 acre land and 0.26-1/2 acre land respectively and opposite party No. 2 transferred the case land by the kabala under preemption to the preemptee.
The trial Court also took the erroneous view that the pre-emptor could not prove that by virtue of the deed of heba, she mutated her name, but failed to consider that’ merely because even the pre-emptor failed to prove mutation of her name in respect of 0.09 acre land, title passed by the deed of gift could not be said to have been lost and the Appellate Court rightly found that the trial Court in rejecting the application for pre-emption made some irrelevant comments.
For the discussions made above, we find merit in the appeal. Accordingly, the same is allowed without any order as to cost. The impugned judgment and order of the High Court Division is set aside and those of the Appellate Court are restored. The application for preemption is allowed.
