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Second Appeal No. 1077 of 1958, decided on 10th August 1961.
O. XLI, r. 4 and O. XXII‑ Death of party impleaded causes abatement of appeal so far as such party is concerned‑Effect upon appeal, dependent on circumstances of each case‑Order XXII attracted‑Order XLI, r. 4, enabling provision‑[Baij Nath and another v. Ram Bharose and others A I R 1953 All. 565 rel.]
S. R. Pal with Ismailuddin Sarkar and Abu Backar for Appellants.
Abdul Aziz with Ahmad Sobhan and M. A. Raof for Res pondents.
‑This appeal has come up before us on account of a reference by our learned brother Sattar, J. as it involves a point of law (namely, whether on account of death of appellant No. 2 all her heirs not having been substituted and brought on record, the whole appeal has become infructuous) on which there is a conflicting decision of Division Bench of this Court.
2. Facts of the case, shortly stated, are as follows: Defend ant No. 8 Abdul Hamid acquired raiyati interest in the disputed land of R. S. Plots Nos. 5825, 5826, 5829 described in First Schedule to the plaint, comprising a tank and its bank, by a patta, Exh. B, dated 20‑10‑49.
3. The watery portion of the tank is covered by R. S. Plot No. 5825 and the northern part of the western bank is covered by R. S. Nos. 5825 and 5829 and the western part of the northern bank is covered by R. S. Plot No 5826. This northern portion of the western bank and western portion of the northern bank and the watery portion of the tank is the disputed property in the suit.
4. Defendant No. 8 sold his interest in the tank to defendant No. 9 by kabala Exh. A dated 8‑11‑49, that is, about 18 days after he got settlement by Exh. B. Defendant No. 9 in his turn made a gift of the watery portion of the tank and part of the homestead situation near about the tank in favour of his wife defendant No. 10 by a deed of gift, Exh. D dated 25‑1‑54. Plain tiffs purchased from defendant No. 9, 4 annas share in the disputed tank comprising its bank and its watery portion by three kabalas Exhs. 3, 3 (a) and 3 (b) all dated 3‑4‑54. Defendant No. 1 took settlement of watery portion from defendant No. 10 by a patta Exh. B (1) dated 25‑6‑54. He also took settlement from defendant No. 9, the disputed portion of the bank by a patta Exh. B (2) dated 28‑6‑54, that is, three days after his settlement of the watery portion by Exh. B (1). Defendants Nos. 2 and 3 who are mother and wife respectively of defendant No. 1 purchased rent‑receiving interest in the watery portion from defendant No. 10 by Exhs. A (2), A (3) and A (4). All are dated 25‑7‑54.
5. In the present suit the plaintiffs claimed declaration of their title and confirmation of their possession to the extent of their 4 annas share in the tank comprising its bank and its watery portion and also for a declaration of their easement right of path way over the disputed portion of the bank, that is, northern portion of the western bank and the western portion of the northern bank leading to the ghat in the water of the tank and user of the water of the tank on the allegations that the defendants are denying their right, title and possession and a right of way and right of user of the watery portion of the tank.
6. The suit was contested by defendants Nos. 1, 2, 3, 10 and 11 to 14 by filing different written statements one by defendant No. 1, the second by defendants Nos. 2 and 3, the third by defendant No. 10 and the fourth by defendants Nos. 11 and 12 and the fifth by defendants Nos. 13 and 14. Of these contesting defendants, defendant No. 10 who denied to have ever threatened the plaintiffs with possession stated that she had no objection if the plaintiffs used the water of the tank by passing over the pathway leading up to the ghat and admitted the existence of the pathway and the ghat for a long time as claimed by the plaintiffs, and that taking advant age of her position as a pardahnashin lady defendants Nos. 1 to 3 got some collusive documents from her husband on the strength of which they did not acquire any interest in the disputed land. She denied to have got any property by gift from her husband and possessed any property on the strength of any such gift and prayed for dis missal of the suit against her as she was not a necessary party.
7. The contentions of defendants No. 1 to 3 mainly are as follows: One Sultan Ahmad took lease of the tank from defend ant No. 9 Abdur Rashid by a kabuliyat dated 25‑3‑52. He sold his interest to Abdul Jabbar by a kabala dated 23‑4‑53. Abdur Rashid defendant No. 9 made a gift in favour of his wife defendant No. 10 in respect of the watery portion of the tank and a part of his homestead on 25‑1‑54 who got possession of the gifted land and erected mud‑walled but in the homestead and cleared the tank and reared and caught fishes in the watery portion of the tank. Defendant No. 1 took settlement of the watery portion from defendant No. 10 by patta dated 25‑6‑54 and the batik of the tank from Abdur Rashid, by a patta dated 28‑6‑1954 on payment of salami of Rs. 900. Then defendants Nos. 2 and 3 purchased the riayati interest from defendant No. 10, wife of Abdur Rashid by three kabalas dated 25‑7‑54. Defendant No. 3 purchased some portion of the bank from Abdur Rashid, defendant No. 9 by a kabala dated 25‑7‑54. Their contention is that before defendant No. 9, Abdur Rashid sold to the plaintiffs, defendant No. 9 made a gift of watery portion of the tank in favour of his wife defen dant No. 10 from whom they claimed interest by virtue of lease and purchases and they are in possession by virtue of those transactions and the plaintiffs have not acquired any right, title and interest and possession nor they had any right of easement and denied to have ever caught fishes in the tank or ever used the watery portion of the tank by passing over the alleged pathway and ghat as claimed by the plaintiffs. Defendants Nos. 11 and 12 supported the case of the defendants Nos. 1 to 3 and claimed interest by virtue of a patta dated 16‑5‑54 from the defendants Nos. 9 and 10 and got possession on the strength of that patta.
8. Defendants Nos. 13 and 14 stated that they do not claim any interest but they simply asserted that they possessed the tank for one year on the strength of an Eksana kabuliyat, dated 12‑4‑55 and subsequently surrendered possession to defendant No. 1 after a year. So they pleaded that they are not necessary part.
9. Both the Courts below found that the deed of gift Exh. D, dated 25‑1‑54 was not a genuine transaction and the defendant No. 10 wife of defendant No. 9 never got the gifted property nor ever possessed the same, and held that the plaintiffs acquired a good title in the tank on the First Schedule land to the extent of 4 annas share which is described in Schedule 1 (ka) and they got possession and their possession was proved by witnesses examined in the case. The trial Court also found relying on the report of the Pleader Commissioner that there was a pathway over the disputed property leading up to the ghat at the end of the pathway in the tank for carrying water by the plaintiffs from the tank to their ancestral homestead in R. S. Plot No. 5699 which is close to the disputed bank and the pathway, and that they carried water from the disputed tank by passing over the disputed pathway for more than 100 years, peaceably, uninter ruptedly, continuously and as of right. So the trial Court held "they have acquired an easement right, over the pathway" and in the user of the water of the tank.
10. On appeal by the defendants Nos. 1, 2 and 3 alone, the judgment and decree of the trial Court was affirmed. Hence this appeal by the same defendants Nos. 1, 2 and 3.
11. During the pendency of the appeal defendant‑appellant No. 2, mother of the plaintiff‑appellant No. 1 and mother‑in‑law of the plaintiff ‑appellant No. 3 died. There was an application with notice to the Advocate of other side for substitution with a prayer for making a note in the memorandum of appeal to the effect that the defendant‑appellant No. 1 was the only heir of the deceased appellant No. 2 and he is already on the record. A note to that effect was made. Thereafter an application was filed by the plaintiffs‑respondents stating that the date of death given in the application for substitution by the appellants was a real date and that two of the deceased‑appellant's daughters by her first husband have been left out in the application for substitution and those heirs not having been substituted within the period of limitation the appeal abated so far as the deceased‑appellant No. 2 was concerned with had made the whole appeal infructuous.
12. At the time when the case came up before our learned brother Sattar, J., he referred the case for placing it before a large Bench as there was a conflict of decisions of Division Bench or this Court in the cases of Darbar Khan Talukdar and others of Apurba Kumar Hazra and others and Collector of Pabna v. Babu. Apurba Kumar Hazra and others (P L D 1959 Dacca 26) and the case of [man Ali Halsana and others v. Furkan Ali Mondal and others (P L D 1960 Dacca 3), the case of Haji Asmat Ali Khan and others v. Municipal Commissioner of Madaripur Municipality and others (P L D 1960 Dacca 821). We shall deal with this question of conflicting decisions later on.
13. Coming now to the merits of the case Mr. S. R. Pal, the learned Advocate for the appellants raised two points in support of the appeal, namely, (1) that in view of the findings of both the Courts below that the deed of gift, Exh. D is a benami transaction by defendant No. 9 in favour of his wife defendant No. 10 the defendants Nos. 1‑3 being bona fide transferee from the ostensible owner for consideration they were entitled to get protection under section 41 of the Transfer of Property Act, and (2) the second contention is that the lower appellate Court did not consider the case of the defendant No. 1 so far as it related to the settle ment of the disputed bank of the tank on basis of Exh. B (2) dated 28‑6‑54 from defendant No. 9 which is independent of the deed of gift.
14. Coming to the first point we may simply quote the relevant portion of section 41 of the Transfer of Property Act which runs as follows :‑
"Where . . . a person is the ostensible owner of such (immov able) property and transfers the same for consideration, the transfer shall not be void-able on the ground that the trans feror was not authorised to make it: provided that the trans feree, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
We may state here that the finding of the lower appellate Court in this case is that this transferee should have made a reasonable enquiry as to the fact of possession and fact of title of defendant No. 10 which they did not; so they did not prudently. Further there is no evidence whether the transferee has acted in good faith and whether they were transferees for consideration. Defendant No. 10 definitely disowned the gift and characterized those transfers from her in favour of the defendants as collusive and fraudulent. This point admittedly was not specifically raised before any of the Courts below nor there was any proper enquiry in either of the Courts below. It is not a pure question of law but a mixed question of law and fact and requires establishment of elements necessary for the application of section 41 of the Transfer of Pro perty Act and as such the appellants are not entitled to raise the point for the first time in second appeal. The finding of the Courts below is that the deed of gift is not genuine and not that it was a benami transaction.
15. As to the second point, the learned Advocate con tends that the appellate Court did not consider the rights of defendant No. 1 in respect of the disputed banks on the basis of settlement Exh. B (2) dated 28‑6‑54. His contention is that even if the deed of gift in favour of defendant No. 10 by defendant No. 9 falls through the claim of defendant No. 1 can still be maintained on the basis of settlement from defendant No. 9 in respect of the disputed bank of the tank on the basis of settlement Exh. B (2). 1t is not correct to contend that the Court of appeal below has not considered this aspect of the matter. First of all trial Court at page 9 of the paper book dealt with this 99‑year lease of the bank of the tank by patta dated 28‑6‑54, Exh. B (2) and the trial Court held that the "plaintiff's kabalas Exh. 3‑3 (b) are not hit by defendants pattas Exhs. B (3) and B (2). So the kabalas Exh. 3‑3 (B) will prevail over the pattas Exh. B (3) and Exh. B (2)". The learned Subordinate Judge on appeal at page 25 of the paper book observes as follows:‑
" The plaintiffs have further shown that there was no inten tion on the part of defendant No. 9 Abdur Rashid to make a bona fide gift in favour of his wife Mariam, defendant No. 10. But it appears that Abdur Rashid, defendant No. 9, created one patta Exh. B (2) dated 28‑6‑54 for 99 years in favour of defendant No. 1. Prior to this document we find another patta Exh. B (3) dated 16‑5‑54 granted by defendants Nos. 9 and 10 in favour of defendants Nos. 11 and 12. Defendant No. executed another patta in favour of one Abdul Mutaleb on 2‑2‑54 in respect of self‑same land and self‑same interest. It is Exh. B (4). It was executed only a little more than 2 months before the execution of Exh. B (3) and about 4 months before the execution of Exh. B (2). It is now evident that these two persons were indiscriminately creating documents in respect of the self‑same property and the persons who were receiving the documents from the couple did not also make proper enquiries as to the right, title and interest of the property and as such did not act prudently. Abdur Rashid did not stop there. He leased out this raiyati interest to one Sultan Ahmad for 3 years by Exh. C (1) on 25‑3‑52. This Sultan Ahmad again sold his lease‑hold right to one Abdul Jabbar, vide Exh. A (1) dated 23rd April 1953. It, therefore, seems that Abdur Rashid was creating document indiscriminately without meaning any real transaction."
This finding of the lower appellate Court is quite sufficient in our view to dispose of the rights of the defendant No. 1 on the basis of Exh. B (2) also. Further after the sale of a share in the tank by defendant No. 9 to the plaintiffs Exh. 3 series, the plaintiff has become a co‑sharer in possession. If defendant No. 9 creates a lease, even if it is bona fide lease, it is not binding against the non‑contesting co‑sharer‑plaintiff. So we are of opinion that this appeal has got no substance on merit and is liable to be dismissed.
16. After the delivery of the judgment of the appeal on merit, Mr. A. Aziz, the learned Advocate on behalf of the respon dents submitted that he did not press the point of abatement on account of non‑substitution of two of the heirs of the deceased appellant No. 2. So we think we need not decide this point. If we were to decide the point, we would have held that whether, abatement of appeal oil account of the death of one of the appel lants or one of the respondents would affect the whole appeal or not would depend on the circumstances of each case. If the case is such that the cause of action survives to the surviving appel lant or appellants alone or respondent or respondents alone, as the; case may be and there is no chance of conflicting decrees‑one of trial Court and the other of the Court of appeal‑then the abate ment on account of death of one will not affect the appeal. Other wise whole appeal will be affected. It is immaterial whether under A Order XLI, rule 4 of the Code of Civil Procedure one of the plain tiffs or one of the defendants can maintain an appeal, ground being common, if once appeal has been filed imp leading the other, either as appellant or as respondent, it will attract the operation of the provisions of Order XXII of the Code, as the case may be. Order XLI, rule 4 of the Code of Civil Procedure is an enabling provision. It does not say whether other plaintiff or defendant is to be imp leaded or not as party respondent. But when such plaintiff or defendant is imp leaded either as appellant or respon dent; death of such appellant or respondent causes the abatement of the appeal so far as such appellant or respondent is concerned Whether such abatement will affect the whole appeal or no will depend on the circumstances of each case as stated above The circumstances of the present case in which declaration of title, easement right of pathway and user of water, confirmation of possession praved for on ground of denial of right and threatened dispossession, abatement of appeal on account of death of one of the defendants‑appellants will affect the whole appeal. In support of the above view reference may be made to the Full Bench decision of Allahabad High Court it the case of Baij Nath and another v. Ram Bharose and others (A I R 1953 All. 565).
The result, therefore, is that this appeal is dismissed with costs to the plaintiffs‑respondents.
A. S. CHOWDHURY, J.‑I agree with my Lord, the Chief Justice.
S. B./A. H.
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