Important Rulings On Civil Laws

Section 32– Identification by torch light or hurricane light, at dead of night is not sufficient unless the distance is in close proximity and when there is a background of enmity and the witnesses are chance witnesses and not natural witnessess and natural and independent witnesses were not produced, it is unsafe to rely on the chance witnesses to connect the accused with the crime. Nepaleon Khondker alias Lepu and another vs State 54 DLR 386. Section 33– Relevancy of evidence by witness not available for cross-examination. There is no provision in the Evidence Act that the evidence of a witness which is admissible at the time he gave it should become inadmissible for the reason that he could not be cross–examined for some unavoidable reason. Chowdhury Miah vs Dhanindra Kumar Shil 45 DLR 110. Section 33– A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straitjacket formula would be laid down that non–examination of investigating officer per se vitiates a criminal trial. Babul Sikder and others vs State represented by the DC 56 DLR 174. Section 34– It was incumbent on the Courts below to properly scrutinise the material circumstances for determining whether the chain of circumstantial evidence is so complete as to lead to the only conclusion of the appellant's guilt. Osman Gani vs State 54 DLR (AD) 34. Section 34– The exception taken by the Counsel for non–examination of all or reasonable number of witnesses cited in the prosecution report is of no merit since it is for the prosecution to decide amongst the cited witnesses how many it will examine for establishing its case against the accused persons. Zahed Ali Foreman (Driver) and others vs State 56 DLR (AD) 29. Section 35– School Register, Admit Cards and Board's Certificate are public documents and admissible in evidence under section 35, Evidence Act. Their evidentiary value as regards age of a boy not treated as being correct ¬tendency being to understatement of age. Abul Hashem vs Mobarak Uddin 38 DLR 145. Section 35– Lower Appellate Court's finding as a final court of fact about age as given in the Admit Card that the boy's Admit Card gives understatement of his age the High Court Division accepts that as binding on it. Abul Hashem vs Mobarak Uddin 38 DLR 145. Section 35– A seizure list, a post mortem report, a confessional statement recorded under section 164 of the CrPC or any statement of any person recorded under section 161 of the Code not being in public or other official book, register or record, they are not admissible under section 35 of the Evidence Act. State vs Ershad Ali Sikder and others 56 DLR 185. Sections 40, 41, 42, 43 and 44– "Relevant" means and relates to admissibility only-Evidentiary value of a judgment which is relevant is different from the question whether it is admissible in evidence. Hazi Waziullah vs Additional Deputy Commissioner, Noakhali 41 DLR (AD) 97. Section 43– Section 43 of the Evidence Act is attracted to the present case. Under section 40 a previous judgment, order or decree is relevant to bar a second suit, that is, when such a judgment operates as res judicata under section 11 CPC. Under section 41 a final judgment, order or decree of a competent court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, is not only relevant but also is conclusive both against the parties thereto as well as against the rest of the world, that is, it is a judgment in rem as distinguished from a judgment in personam. Under section 42 a judgment is relevant if it relates to any matter of public nature but it is not a conclusive proof of the fact it states. None of these sections, 40, 41 and 42, obviously is attracted to the instant case. It is section 43 which may be attracted to the instant case. Hazi Waziullah vs ADC Revenue 41 DLR (AD) 97. Section 44– Court's judgement, burden of¬- When the petitioner has produced a judgement and decree, the burden is on the adverse party to show that the court was not competent to pass the decree. Rahela Khatun vs Court of Settlement 45 DLR 5. Section 44– Fraud–When a judgement is set up by one party as a bar to the claim of the other, the latter can show that the same was delivered without jurisdiction or was obtained by fraud. It is not necessary for him to have the judgement set aside by a separate suit. Abdul Gani Khan vs Shamser Ali 45 DLR 349. Section 45– Neither the finger prints forwarded to the expert were taken as per order nor in presence of the Court. Under the facts and circumstances conviction based solely on expert report is liable to be set aside. Sabha Rani Biswas vs State and ors 52 DLR 293. Section 45– Medical evidence is only corroborative in nature, the ocular evidence of the eye–witness which substantially corroborates the major injuries on the person of the deceased be accepted. State vs Md Shamim alias Shamim Sikder and ors 53 DLR 439. Section 45– Where the direct evidence is not supported by expert evidence, and evidence is wanting in the most material part of prosecution case it would be difficult to convict the accused on the basis of such evidence. Nepaleon Khondker alias Lepu and another vs State 54 DLR 386. Section 45– Medical evidence–The material obtained on the swab must be preserved and forwarded for examination by the expert for the presence of human spermatozoa which is a positive sign of rape. It seems that the doctor examined the external part of the injuries of vagina and failed to make detail dissection so as to ascertain to prove the actual occurrence of rape. State vs Harish 54 DLR 473. Section 45– The evidence of an expert cannot alone be treated and used to form basis to find an accused guilty and to form basis of his conviction independent of the substantive evidence of the PWs in the case. Kalu Sheikh alias Kalam Sheikh and others vs State 54 DLR 502. Sections 45 & 73– There are different modes of proving the signature or hand writing on documents but section 45 is one of them and in the instant case the court decided to have opinion of the expert and there is no hard and fast rule for the court as to which mode it should follow. Dr Wakil Ahmed and ors vs Sufia Khatun and ors 53 DLR 214. Sections 45 & 73– Comparison of disputed signature /LTI cannot be done by the expert with the said registered document which is not admitted or proved to the satisfaction of the court. Dinesh Chandra Deb vs Dulal Chandra Karmaker and others 53 DLR 259. Sections 45 & 73– Examination of LTI – It is true Court itself can compare any signature or LTI of any concerned person himself under section 73 Evidence Act but it is better to have an expert's opinion also, particularly in a case of LTI. Sk Abul Qasem vs Mayez Uddin Mondal 45 DLR 169. Sections 45 & 73– Since by scientific process or method examination of signature, particularly thumb impression, has developed much, it is safe and sound to leave the matter of such examination to the expert or to the person specialized in the examination. Serajuddin Ahmed and others vs AKM Saiful Alam and others 56 DLR (AD) 41. Sections 45 and 73– It is always open to the Court to decide as to whether it should itself compare the questioned signature or handwriting to come to a decision or send the same for an expert opinion. Monju Mia and others vs Shira} Mia and others 56 DLR 264. Sections 45 & 115– The comparison of the LTI by the court is its discretion and it does not depend on parties' prayer alone nor can any court be compelled to take recourse to particular mode of proof of handwriting. Dr Wakil Ahmed and ors vs Sufia Khatun and ors 53 DLR 214. Section 47– Opinion as to handwriting– the evidence of PW s 1 & 5 as to the writings in Exts 1-3 being not believable, the documents were not legally proved as the writings thereof could not be proved. Noor Mohammad Khan vs Bangladesh 42 DLR 434. Section 56– The plaintiffs having been successful in proving that the original kabalas were lost it cannot be argued that inadmissible evidences were relied upon as the courts below found that secondary evidence was given of those original documents. Abdul Khaleque Mollah vs ABM Zakaria and another 51 DLR (AD) 78. Section 59– Section 60– There is no evidence that the victim made any statement as regard the incident to anybody other than PW 8. So the claim of PW 4 that victim stated to him about the incident of setting fire in her body by the condemned convicts can hardly be considered reliable. State vs Babul Hossain 52 DLR 400. Section 60– PW 1 has not implicated the accused with any overt act on the basis of charge but reiterated the statement as to derivative knowledge of involvement as mentioned in the FIR and in the charge–sheet which is inadmissible evidence. State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287. Section 61– Secondary evidence when a deed is admitted to be lost. In ordinary cases, if the witness in whose custody the deed should be, deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed. Abani Mohan Shaha vs Asstt. Custodian 39 DLR (AD) 223. Sections 61, 67 & 103– Section 62– Sections 62 & 63– Primary Evidence – Primary evidence of document means document itself and it is produced for inspection of the Court. When a party seeks to prove the contents of document the best evidence rules require that party should produce the original of the primary evidence. Aftab Meah vs Bazal Ahmed 45 DLR 15. Section 63– Photostat copies are admissible in evidence– The minutes recorded in the order book were admitted in evidence after dispensing with their formal proof. Mahajak Shipping Co Ltd vs MV Sagar 39 DLR 425. Section 63– The defendants have not attempted to dislodge the evidence of the plaintiff which remained unchallenged. Mahajak Shipping Co Ltd vs MV Sagar 39 DLR 425. Section 63– A party producing secondary evidence ofa document is not relieved of the duty of proving the execution of the original. Even where a document is exhibited without objection the Court is to be satisfied as to its execution. Sova Rani Guha alias Sova Rani Gupta vs Abdul Awai Mia and others 47 DLR (AD) 45. Section 63(2)– The acceptance of the secondary evidence by the Subordinate Judge and his decision in the 'suit relying upon such non-¬admissible evidence are errors of law apparent on the face of the record. Government of Bangla¬desh vs Mirpur Semipucca (Tin–shed) Kalayan Samity & others 54 DLR 364. Sections 63(2), 65 & 66– Documents being photo copies of the originals which were not called for and are confidential official letters beyond the access of the plaintiffs are inadmissible evidence in the absence of originals. Government of Bangladesh vs Mirpur Semi¬pucca (Tin–shed) Kalayan Samity & others 54 DLR 364. Section 64– Admission of private docu¬ments as evidence–Even if no objection had been taken to formal admission of the rent receipts, the plaintiff having relied upon them for his case was bound to prove their genuineness which would be decided by the court in the light of the facts and circumstances of the case. Md Lashimuddin Kanchan vs Md Ali Ashraf 42 DLR (AD) 289. Sections 64 & 65– Parties having not raised objection against deciding the appeal on the basis of documents already on record, their admission into evidence is a mere formality and there is no illegality in the judgment passed relying on such documents. Lal Chand Sardar vs Abdul Huq Howladar and others 47 DLR 401. Section 65– Secondary evidence of a docu¬ment is admissible in evidence. Hazi Waziullah vs ADC 41 DLR (AD) 97. Section 65– Whether a party producing a document is exempted from explaining in the course of recording evidence why the original was not produced even though no objection was raised when it was produced. Hazi Waziullah vs ADC 41 DLR (AD) 97. Section 65– Newspaper report cannot be admitted into evidence unless the correspondent of such a report comes to the witness box• to vouchsafe in support of the report on oath. Osena Begum alias Babuler Ma and another vs State 55 DLR 299. Section 65– An omission to object in respect of an inadmissible evidence would not make it admissible. Reliance in this regard may be made to the decision in the case of Miller vs Babu Madho Das 23 IA 106. National Bank Ltd and others vs Habib Bank Ltd and others 56 DLR 15. Section 66– Secondary evidence, admissi¬bility of– Certified copies of certain kabuliyats were filed without calling for the original copies. Learned Judge of the High Court Division on a wrong consideration of section 66 Evidence Act left those out of consideration treating them as inadmissible as the originals were not called for. But the documents having been filed and marked exhibits without any objection the question of inadmissibility of those documents cannot be raised at a subsequent point of time. Joynal Abedin & others vs Mafizur Rahman 44 DLR (AD) 162. Sections 67 and 68– Registration, attaches a statutory presumption which extends to the registration of the deed only. Such presumption is never intended to extend to the genuineness of the transaction or to prove execution and/or recitals in the deed. Kamaluddin and others vs Md Abdul Aziz and others 56 DLR 485. Section 68– A registered document carries with it a presumption of validity which can be rebutted after giving due opportunities to the parties. The case is remanded for. disposal after giving such opportunity to prove genuineness or otherwise of the kabala in question. Haji Sk. Md Lutfur Rahman vs Chairman, Court of Settlement 45 DLR (AD) 136. Section 73– Court itself competent to compare a disputed hand–writing or signature of a person with his admitted writing or signature to come to a conclusion. Abdul Main Chowdhury vs Chapala Rani 37 DLR 205. Section 73– Comparison of signature¬– when direction for comparison is not called for -the case is one for eviction and not for determina¬tion of title between the competing parties. Profulla Chandra who is sought to be summoned for his specimen signature was not present before the Court either as a witness or in any other capacity. In the facts of the case the question of directing him to give his specimen signature does not arise. BIWTC vs Nazma Flour Mills Ltd 43 DLR (AD) 105. Section 73– The court at the time of deciding a case may compare the disputed handwriting and signature with the admitted hand-writing or signature of the person concerned and come to the conclusion about the genuineness of the same. Such finding being a finding of fact cannot be assailed either in Second Appeal or in Revision. Nowazullah vs Waz Khatun 45 DLR 279. Section 73– When a document is produced by a party and the signature appearing therein is proved and subsequently the person concerned denies the signature, it is the duty of the Court to compare the same with his other admitted signatures on record. Haragram Trust Board vs. Dr. Golam Mortuza Hossain 47 DLR 160. Section 73– The trial Court committed wrong in discarding the Will on mere comparison of the three signatures by naked eyes without any opinion by any expert. Pratik Bandhu Roy and others vs. Alok Bandhu Roy and others 49 DLR 241. Section 73– The section permits the Court to make a comparison of signature or writings and so adoption of such a method cannot be termed as hazardous or dangerous. Ishaque (Md) vs Ekramul Haque Chowdhury and others 54 DLR (AD) 26. Section 73– The Court is not bound to refer a document to the handwriting expert when it can itself note the dissimilarity in LTIs and handwriting. Majizul Hoq Bebu (Md) vs Majida Begum and others 54 DLR 219. Section 73– In view of the provision of section 107(2) of the Code the High Court Division was competent to compare the signature of the defendant in the 'bainapatra' with his available signatures and, as such, was in error in sending back the case for the said purpose to the trial Court. Aftab Ali (Captain Retired) vs SM Kutubuddin 56 DLR (AD) 117. Sections 73 & 45– Examination of LTI– It is true Court itself can compare any signature or LTI of any concerned person himself under section 73 Evidence Act but it is better to have an expert's opinion also, particularly in a case of LTI. Sk Abul Qasem vs Mayez Uddin Mondal 45 DLR 169. Section 74– Plaint and written statements are public documents under section 74. Reazuddin vs Azimuddin 39 DLR 228. Section 74 & 114(e)– Objection as to admissibility of evidence is to be taken at the first instance. In the instant case no such objection was raised against the Commissioner's report in question which can also be relied upon as the same is an official document and was prepared in due course. Abdul Quader Chowdhury vs Sayedul Hoque 43 DLR 568. Section 79– A registered document carries presumption of correctness of the endorsement made therein–One who disputes this presumption is required to dislodge the correctness of the endorsement. Shishir Kanti Pal and others vs Nur Muhammad and others 55 DLR (AD) 39. Sections 79 & 114(e)– The Ekrarnama is a registered deed. So there arises under sections 59 and 60 of the Registration Act read with sections 79 and 114 (illustration e) of the Evidence Act a presumption that it was duly presented and registered. Wahida Begum vs Tajul Islam 52 DLR 491. Section 80– It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466. Section 80– In the attending facts and circumstances of the case when the veracity of the confessional statement is questionable, the same enjoys no presumption of correctness under section 80 of the Evidence Act. Belal alias Bellal and 2 others vs State 54 DLR 80. Section 85– A power of attorney executed by a person resident in Bangladesh and registered is a legal document. Manindra Mohan vs Ranadhir 38 DLR 240. Section 85– Written statement filed under the authority of power–of–attorney executed and duly registered is duly presented in Court. Manindra Mohan vs Ranadhir 38 DLR 240. Section 85– Power-of-attorney though not authenticated by notary public, but when it is duly executed and registered, it is a valid document acceptable in law. Manindra Mohan vs Ranadhir 38 DLR 240. Section 85– Power of attorney must be executed according to the provision of section 85 of the Act otherwise a person holding a power of attorney is not legally permitted to represent his principal under Order III rule 2(a) of the Code. Ramesh Chandra Chowdhury @ Das vs Naresh Chandra Das @ Chowdhury 52 DLR 227. Section 85– The power of attorney, not executed before, and authenticated by a notary public or any representative of the foreign mission, is not admissible in evidence. Shah Alam (Md) vs Abul Kalam and others 54 DLR 276. Section 88 & 114(c)– Where judicial or official act is shown to have been done it is presumed to have been rightly and regularly complying with necessary requirements. Akhtar Hossain vs Government of Bangladesh & ors. 45 DLR 651. Section 91– Section 91– Evidence of terms of contract –Parties in the contract are bound to fulfil the terms of the contract specifically. If they fail to do so, the Court will pass a decree for specific performance of the contract. BCIC vs Grand Basia Company Ltd 43 DLR 256. Section 91– Oral testimony contrary to order recorded by the Court in due course of business cannot be relied on unless it could be shown that the same was obtained by practising fraud upon the Court. Afsaruddin Sardar (Md) vs Md Wazed Ali Sarder 47 DLR 595. Section 91– While deciding the application for preemption, the Court cannot go behind the intentions of the parties in executing the deed of the transfer. Furthermore, any evidence to vary the terms of such deed is also barred under the provisions of section 91 of the Evidence Act. Sazeda Khatun vs Asad Ali and others 53 DLR 563. Section 91– Section 91– While deciding an application for preemption, the Court cannot go behind the intentions of the parties in executing the deed of the transfer. Any evidence to vary the terms of such deed is barred under the provisions of section 91 of the Evidence Act. Sazeda Khatun vs Asad Ali and others 54 DLR 285. Sections 91 and 92– When the intention in executing a document is not what is stated in the document itself but is something else–this fact may be proved–Bar of sections 91 and 92, Evidence Act, cannot be invoked in circumstances like this. In such cases extrinsic evidence would be admissible to prove that a document which is appa¬rently a deed of gift or a sale with an agreement for re–sale is• in fact a deed of mortgage. Jaha Baksha Par vs Fazle Karim Biswas 37 DLR 87. Sections 91 and 92– Section 92– In view of the provision of section 92, a deed of sale cannot be treated as a mortgage–deed and intention to treat as a mortgage deed cannot also be permitted. Feroza Majid vs JB Corporation 39 DLR (AD) 78. Section 92– Oral extraneous evidence to contradict the terms of the contents of a document is inadmissible under section 92 of the Evidence Act. Feroza Majid vs JB Corporation 39 DLR (AD) 78. Section 92– Section 92– Section 92– Section 94– Evidence of terms of contract ¬Parties in the contract are bound to fulfil the terms of the contract specifically. If they fail to do so, the Court will pass a decree for specific performance of the contract. BCIC vs Grand Basia Company Ltd 43 DLR 256. Section 101– Onus of proof–It is for the defendant to prove that the disputed document was executed on the purported date–Mere assertion in the written statement cannot be treated as evidence–Document being between two brothers registered at a different Sub¬Registrar's office and attesting witnesses being close relations of the recipient, there are strong circumstances in favour of collusion. Haji Karamat Ali Master vs Lehajuddin Talukder 41 DLR 447. Section 101– The initial onus lies on the plaintiff to prove his title. [32 DLR (AD) 29 distinguished]. Abani Mohan Saha vs Asstt. Custodian 39 DLR (AD) 223. Section 101– Burden of proof lies on the person who asserts that a fact exists. Haque Brothers vs Shamsul Huq 39 DLR 290. Section 101– Disbelief of the defence case ipso facto does not make the plaintiff's case believable. Even in the case of an ex parte disposal of a suit, the court is required to come to a finding on assessment of the materials that the plaintiff has been able to prove his case. Sheikh Salimuddin vs Ataur Rahman 43 DLR 18. Section 101– The defendant took the ground that late Alimuddin did not sign the will, the onus was upon the defendant to prove that late Alimuddin did not sign the same. Moinuddin Ahmed alias Farook vs Khursheda Begum and ors 54 DLR 354. Section 101– He who alleges fraud or forgery, burden lies upon him to prove the same. The petitioners by filing an application for calling for the record of the concerned case took reasonable steps to prove their the case of fraud and forgery. The application was rightly filed. Abdullah (Md) and others vs Majibul Huq and others 56 DLR 528. Sections 101 & 102– The definite case of the Government being that the suit property is an abandoned property, onus lies on them to prove that it is an abandoned property. Government of the People's Republic of Bangladesh vs Hosne Ara Begum and others 48 DLR 511. Sections 101 & 102 When both the parties lead evidence question of onus is out of place and the matter is to be decided on the evidence led by the parties. Ishaque (Md) vs Ekramul Haque Chowdhury and others 54 DLR (AD) 26. Sections 101 & 103 Mere filing of a rent receipt or a private document without formal proof thereof and without proving the contents of such documents cannot fulfil the requirements of law. Bangladesh vs Md Aslam 44 DLR 69. Sections 101–104 Defendant though pleaded marriage of Monwara with Amir Ali yet the onus of proof is not on him (but on the plaintiff). Khorshed Alam vs Amir Sultan 38 DLR (AD) 133. Sections 101-104 Plaintiff failed to prove that defendant is the son of the prostitute Baramoni––Court below shifted the onus on the defendant to prove marriage of Monwara with Amir Ali contrary to law. Khorshed Alam vs Amir Sultan 38 DLR (AD) 133. Sections 101–104 Plaintiff failed to establish that there was no marriage between Amir Ali and Monowara and also that Khorshed Alam is the son of Baramoni–Again, all the courts below worked under a misconception of law as to the question of onus of proof and they placed the onus on the defendant about Monowara's marriage–Which was clearly for the plaintiff to discharge. Khorshed Alam vs Amir Sultan 38 DLR (AD) 133. Sections 101–104 Plaintiff failed to discharge the onus of proof that defendant I was the son of Baramoni, a prostitute and was adopted by Amir Ali–Plaintiff did not examine Baramoni to prove his case–Appellate Court's finding that Baramoni was not examined as witness by defendant which shows that defendant I was not the son of Amir Ali. This conclusion is unwarranted and contrary to all presumptions of law built up over the last 150 years. Khorshed Alam vs Amir Sultan 38 DLR (AD) 133. Sections 101–104 Onus of proof–Where no difficulty arises in arriving at a conclusion, the question of onus recedes to the background, but where court finds it difficult to make up its mind the question comes to the foreground and becomes the deciding factor. In the present case the onus of proving the oral contract lies on the plaintiff and this onus remained constant as neither the oral contract nor any part of it was admitted by the defendant. Jonab Ali (Md) vs Md Moslem Uddin 44 DLR 291. Section 102– This observation of the Sub¬Judge • was correctly made. The onus was not wrongly placed on the defendant. Contention of the appellant's Counsel regarding the question of limitation. The finding of the lower appellate Court cannot be construed as making of new case regarding the barga settlement. Limitation is a mixed question oflaw and fact after considering the evidence both oral and documentary. Afroz Rashid vs Fazlul Karim 40 DLR (AD) 79. Section 102– Burden of Proof and Onus Probandi –The plaintiff has produced not an agreement of sale but a receipt of earnest money, signed not by the owner of suit properties but by her son– The basis of his suit is an oral agreement, not Ext. 4 the receipt which is only a supporting evidence. The defendants have no burden to prove their alternative story with regard to the creation of Ext. 4. Al–Haj Ahmed Hossain vs Rejaur Rahman 42 DLR (AD) 225. Section 102– Burden of proof–plaintiffs having failed to prove their title and possession in the suit land there is no necessity of deciding whether the suit land vested in the Government. Noor Mohammad Khan vs Bangladesh 42 DLR 434. Section 102– Burden relating to forged document– The petitioner–pre–emptor discharged his initial burden (as to his knowledge of limitation for the pre–emption proceeding) by filing in court the copy of a petition showing the date of his knowledge. The opposite parties' case is that the petitioner –by 'forging the thumb impression of the person concerned filed the petition in order to create cause of action for the pre–emption case but there is no explanation by them as to why the person concerned (one Aynal Khan) could not be produced to deny his signature in the petition (in proof of the forgery). The opposite parties have therefore failed to discharge their burden to show that the petition was a forged document. Abdul Malek Howlader vs Umme Kulsum 42 DLR 459. Section 102– Where initial onus is discharged by the plaintiffs by giving slight evidence the burden shifts to the defendant to prove the contrary. Amirunnessa vs Golam Kashem 42 DLR 499. Section 102– In a case where the alleged executant denies execution of a document it is the duty of the plaintiff to prove such execution. Serajul Islam (Md) vs Binoy Bhusan Chakraborty and others 47 DLR 248. Section 103– Burden of proof as to particular fact– The defendant in a suit for specific performance of contract admits her LTI in the agreement for sale and offers an alternative story as to how her LTI came to be put on the document. The onus lies on her to prove the alternative story. Md Chand Miah vs Khodeza Bibi 42 DLR 344. Section 103– Onus lies on the defendant to prove her alternative story as to how her LTI came to be put on the document. Chand Miah vs Khodeza Bibi 42 DLR 344. Section 103– Onus of Proof–Transferee to discharge his onus with regard to payment of money on good faith and absence of knowledge of the earlier contract–Lower appellate Court has left this point undecided. Muktar Hussain Khan vs Suresh Chandra Dey 42 DLR 86. Section 103– There is wrong shifting of onus by the Courts below–In the instant case the learned courts below put the onus on the defendant from the very beginning without finding whether the plaintiff had prima facie proved his case only when the onus would be upon the defendant to prove that he is not a defaulter, thereafter but paid rent without a receipt. It appears that there is a wrong shifting of onus by the courts below initially in the instant case. Narayan Prosad Bhowmic vs Sreela Sree Juktaswar Radha 40 DLR 449. Section 103– Burden of proof as to particular fact– The defendant wants the courts to believe that the sale deed Ext. 2, the basis of Ext A, is a bonafide document for valuable consideration but no evidence in this regard having been adduced the said Ext. cannot be allowed to stand. Anwar Hossain vs Abul Hossain Molla 44 DLR 79. Section 105– If the accused wants to bring his acts within any one or more of the general exceptions enumerated in Chapter IV of the Penal Code, it is for him to prove that his acts are so covered under any of those general exceptions. Nikhil Chandra Halder vs State 54 DLR 148. Section 105– The burden of proving the existence of circumstances bringing the case within the exception lies on the accused. State vs Abdus Samad@ Samad Ali 54 DLR 590. Section 105– Accused's pleading of self-defence need not be proved if he establishes facts which on the test of preponderance of probabilities makes his defence acceptable. Hasan Rony vs State 56 DLR 580. Section 105– Burden of Proof–In criminal law, the onus of establishing all the ingredients, which could make a criminal offence, lies always on the prosecution and this burden never shifts upon the accused. Hasan Rony vs State 56 DLR 580. Section 106– Husband of the deceased was found absconding without any explanation. He neither gave any information to the police nor to his mother–in–law that her daughter has died or to any local people. He thus failed to fulfill the requirement of law and the natural expectation about the cause of death of his wife. Joynal Bhuiyan & another vs State 52 DLR 179. Section 106– The definite and specific defence plea being within the special knowledge of the accused a burden was cast upon him to discharge it, more so, when the prosecution proved the guilt of the accused by convincing and overwhelming evidence. Jamal Uddin alias Md Jamal Uddin vs State 52 DLR 330. Section 106– Section 106 Evidence Act is attracted in exceptional cases where a relevant fact is pre–eminently within the knowledge of the accused. Hasmat Ali vs State 53 DLR 169. Section 106– In a case where the wife is proved to have died of assault in the house of the husband there would be strong suspicion against the husband that at his hand the wife died. To make the husband liable the minimum fact that must be brought on record either by direct or circumstantial evidence is that he was present in the house at the material time. Hasmat Ali vs State 53 DLR 169. Section 106– The recovery of the blood¬stained axe and lungi belonging to the convict constituted a strong circumstantial evidence, conclusive enough so as not to admit any hypothesis of his innocence. Hasmat Ali vs State 53 DLR 169. Section 11 – The presumption under section 110 in this case would apply only if two conditions are satisfied viz, the possession of the person claiming long possession is not prima facie wrongful and secondly, the title of the person against whom the long possession is claimed is not proved. Gouri Das and others vs ABM Hasan Kabir and others 55 DLR (AD) 52. Section 111– When any deed is executed by a pardanashin lady burden lies on the person who claims benefit under the deed to establish that the deed was executed by her on her own accord. Independent advice in case of transfer of property by pardanashin lady is insisted when the transferee stands in a fiduciary relationship with the lady. Abdul Mannan Shah vs Kafiran Nessa 46 DLR 103. Section 112– Parenthood, proof of– If a person wants to prove that he is not the father of his child, he must establish that he had no access to the wife. Once it is proved that he had access to his wife, the fact that his wife was a woman of bad character and that she was accessible to other people too is not a ground to hold that the child born during the continuance of marriage or within 280 days after its dissolution is not that person's child. Jashimuddin (Md) alias Md Jashimuddin vs Dali Begum and another 56 DLR 358. Section 114– Acquisition of land for Railway–Two public documents one being a copy of Gazette notification of 1933 and the other the land's plan which were more than thirty years old and filed as exhibits lead to a presumption that official acts referred to therein were regularly performed and those documents were sufficient to rebut the presumption of correctness of RS and subsequent record of right. GM Bangladesh Railway vs Mossammat Sharifjan Bibi 43 DLR (AD) 112. Section 114– Court will take adverse presumption for non–production of any evidence or non–examination of any witness if the party is in a position to produce such evidence or witness. Mahatabuddin Biswas vs Abdul Jalil and others 47 DLR 441. Section 114– There is always a presumption that government action is in public interest. The Court will not easily assume the action taken by the government is unreasonable or without public interest. It is for the party challenging authority to show that it is wanting in public interest. This burden is heavy and has to be discharged by the party concerned. Akramuzzaman vs Government of Bangladesh, and others 52 DLR 209. Section 114– Tendering of vital witness amounts to withholding of material witnesses and adverse presumption ought to have been drawn against the prosecution. Hobi Sheikh and another vs State 56 DLR 383. Section 114, Ills, (f)– Notice addressed duly returned with remarks refused–validly served. Ambia Khatun vs Serajul Islam 39 DLR 287. Section 114(c)– There being a presumption of regularity of a judicial act under section 114( c) of the Evidence Act whenever a judgment–debtor or anybody stepping into his shoes seeks to have a decree passed by a court of competent jurisdiction adjudged void by reason of fraud, a heavy onus lies on him to prove the alleged fraud by cognate and reliable evidence. Sabitri Barai vs Asstt. Custodian 39 DLR 172. Sections 114(c) & 88– Where judicial or official act is shown to have been done it is presumed to have been rightly and regularly complying with necessary requirements. Akhtar Hossain vs Government of Bangladesh & ors 45 DLR 651. Section 114(e)– Objection as to admissibility of evidence is to be taken at the first instance. In the instant case no such objection was raised against the Commissioner's report in question which can also be relied upon as the same is an official document and was prepared in due course. Abdul Quader Chowdhury vs Sayedul Hoque 43 DLR 568. Section 114(g)– There is nothing on record to find any justifiable reason for the absence of the plaintiff in the suit although his bonafide was seriously challenged from the very beginning. Under such circumstances, the Court of appeal below appears to be justified in drawing an adverse presumption against the plaintiff. Abdur Rahim vs Arifur Rahman and others 50 DLR 166. Section 114(g)– The document is as old as 50 years and there is no evidence that the defendant had wilfully suppressed the document from producing it in court. In that view the findings of the court of appeal as to the presumption under section 1l4(g) of the Evidence Act is untenable. Shahidullah and others vs Lutfur Karim and others 50 DLR 328. Section 114(g)– When an action is taken by maintaining a file, the file must be produced to show that the act was done properly. As the relevant file has been withheld in this case presumption under section l 14(g) of the Evidence Act shall apply. Chowdhury Mahmood Hasan and others vs Bangladesh and others 54 DLR 537. Section 114(g)– Defence was obviously deprived of scope to cross–examine investigation officer on vital aspects and it is obvious that defence was prejudiced seriously due to non-¬examination of the investigation officer. Prosecution offered no explanation as to non¬-examination of some CS witnesses including investigation officer and it will give –rise to presumption under section 114G Evidence Act. Mokbul Hossain and another vs State 55 DLR 396. Section 114(g)– When it is not disputed that the payments were made by cheques, in order to prove the dates of the cheques, the plaintiff could have easily called for the record of the bank. But the plaintiff preferred not to tread the path and thereby withheld the best evidence from the Court. Saroj Kanta Sarker and others vs Seraj¬-ud-Dowla and others 56 DLR 39. Section 114(g)– The evidence of a prosecu¬trix in a rape case customarily, being a woman of full age, is not accepted as sufficient, but requires corroboration by independent evidence in order to be believed which has been found in the decision reported in 19 DLR (SC) 259. Hossain Shially (Fakir) vs State 56 DLR 637. Section 80– High Court Division wrongly applied the provisions of section 80 to admit into evidence a statement of a witness recorded under section 164 during investigation stage and not in a judicial proceeding. Hossain@Foran Miah and others vs State 56 DLR (AD) 213. Section 115– There cannot be any acquiescence without full knowledge both of the right infringed and of the acts which constitute the infringement. Haque Brothers vs Shamsul Huq 39 DLR290. Section 115– Fishery–Lease of–Appellant society could not show any infringement of statutory rules in creating lease of fishery–No question of estoppel arises against Government either quasi or promissory. Haruni Fishermen’s Co–operative Society vs Md Ebadat Ali & others 40 DLR (AD) 266. Section 115– Notification exempting duty and tax–Legality of subsequent notification and question of estoppel–The notification under section 19 was issued without any condition excepting the “terms and conditions” therein. Subsequent notification taking away exemptions can have no operation when a right had vested in the importer. The importer having acted upon the assurance ‘given, the Government cannot retrace its steps and ask for duty at the rate mentioned in the subsequent notification. This is clearly a case of estoppel, the well–settled principle of promissory estoppel. Collector of Customs, Chittagong vs A Hannan 42 DLR (AD) 167. Section 115– Consent Decree–Limitation and Estoppel–Plaintiffs elected to give up all the reliefs prayed for in the suit and to limit their prayer, by amendment, to a declaration that they are the sole legal heirs of the loanee. On understanding with the plaintiffs, the defendants neither opposed the amendment nor advanced any argument. Since the plaintiffs elected to relinquish all reliefs except the one for saving the suit from limitation and to secure some benefits for them, they are bound by the principle of estoppel and cannot be allowed to argue for the same reliefs which they had voluntarily abandoned. The decree obtained by them being based on understanding–and consent of the parties, they are not permitted to take any appeal from such consent decree. On the same principle the defendant is also barred from preferring any appeal from the High Court Division’s judgment. Parveen Banu vs BHBFC 42 DLR (AD) 234. Section 115– Ordering retirement from service after the petitioners rendered 12 years’ uninterrupted service–Admittedly the appointment of petitioners was made by the then Chairman of the Pourashava, a competent authority and since they joined services on the basis thereof and rendered 12 years of uninterrupted service, their appointment cannot now be said to be made irregularly. If any irregularity was there initially, it has been cured. After they were confirmed following probation of 2 years under the rules their services cannot be terminated arbitrarily in the manner as done by the impugned letter. The grounds of redundancy on which the petitioners have been retired is a colourable exercise of power. The respondent is therefore directed to reinstate the petitioners and pay them arrear salaries as claimed. Kanaklata Halder vs Barisal Pourashava 42 DLR 533. Section 115– The equitable principle of estoppel debars the plaintiff from recovering possession of the suit land from the defendants as they made substantial improvement of the land, although before acquiring title by adverse possession. Renupada Chakraborty vs Kurfan¬ullah & others 46 DLR 532. Section 115– Estoppel– the Railway being a part of the Government, the Government or any of its Ministries is estopped from challenging the validity of the contract concluded with the plaintiff. Pronab Kumar Chakraborty vs Bangladesh 46 DLR 268. Section 115– Estoppel–It is true the plaint refers to defendant’s petition for some amendment in Commissioner’s report relating to the decree in an earlier suit and her serious objection to such amendment and yet she has herself assailed the same decree in the later suit. This actually attracts the principle not of res judicata but of estoppel which means that a person shall not be allowed to say one thing at one time and the opposite of it at another time. Nannu Miah vs Peer Banu Bibi 43 DLR 526. Section 115– Estoppel & Acquiescence¬ Having induced the appellants to permit him to retire from service, the respondent cannot be heard to say they had no power to relieve him. Even if the appellants’ action was not sanctioned by law, he cannot be the person to make any grievance of it, because he wanted a beneficial order in his favour and the appellants had only obliged him. Bangladesh Parjatan Corporation vs Mofizur Rahman 46 DLR (AD) 46. Section 115– Estoppel–It binds heirs–The plaintiff is claiming interest in the property by inheritance through his father. If his father had accepted the title of the defendants as tenants of the property, his father would be estopped from challenging the title of his landlord, and if his father would be estopped the plaintiff would also be bound by the said estoppel as estoppel binds heirs. Bazlur Rahman vs Sadu Mia 45 DLR 391. Section 115– There can be no estoppel where the truth is known to both parties. Saralat Hossain vs Dr. Islamuddin 45 DLR 724. Section 115– Waiver– Estoppel– An officer of the Parjatan Corporation challenging the order retiring her from service before the age of superannuation cannot be said to have waived her rights and accepted the order just for the reason that she had accepted the gratuity money available to her. Hasina Mawla vs Parjatan Corporation 45 DLR 112. Section 115– The plaintiff never abandoned his claim of ownership nor the defendants were misled by his prayer for an annual lease so as to change or alter their position to their detriment and the prayer for temporary lease being obviously under protest the doctrine of estoppel or waiver has no manner of application in the present case. Dayal Chandra Mondal and others vs Assistant Custodian Vested and Non–Resident Properties (L&B) and others 50 DLR 186. Section 115– Before a party could be barred by the principles of estoppel, waiver and acquiescence it must be established that the opposite party acted bonafide on the clear, definite and unambiguous representation made by his adversary and that the opposite party has altered position in pursuance thereof. Moslem Ahmed Sarker (Md) alias Muslim Ahmed vs Abdul Khaleque and others 50 DLR 616. Section 115– Estoppel–Partition is an equitable relief–plaintiffs having abandoned their claim in respect of part of the suit property and the same having been acted upon they are estopped from giving a go by to the compromise to the prejudice of the compromising defendants. Mayurer Nessa and others vs Julekha Khatoon and others 47 DLR 26. Section 115– Acceptance of pensionary benefits under compelling circumstances of the present case cannot be accepted as estoppel. Jahangir Kabir vs Bangladesh 48 DLR (AD) 156. Section 115– It is clear that unless the defendant’s position is changed or altered due to the representation made by the plaintiff, there will be no application of the doctrine of estoppel. Abdur Rahman vs Tazlul Karim Sikdar and others 48 DLR 361. Section 115– When a party is fully aware of the wording of the arbitration clause, and upto the time of submission of award no objection is raised as to the jurisdiction of the arbitrator the party must be estopped from raising such a plea after the pronouncement of the award. Bangladesh Water Development Board and others vs Progati Prakaushali and another 49 DLR 335. Section 115– Promissory estoppel–Though the tenant failed to pay rent within due date and became technically a defaulter, the receipt of Salami, a practice . recognised in the agreement between the parties, can be taken as a promissory estoppel debarring the landlord to go beyond the terms of the agreement. Munshi Amiruddin Ahmed vs Begum Shamsun Nahar 48 DLR 21. Section 115– The Government could not be allowed to work inconsistently, whimsically and capriciously to the prejudice of respondent later when the project was approved by another lawful Government agency at an earlier point of time. Chairman, Board of Investment and others vs Bay Trawling Limited and other 51 DLR (AD) 79. Section 115– Right of pre-emption which is a statutory right cannot be given up or taken away or waived by mere allegation that the pre–emptor was present in the sub–registrar’s office at the time of execution and registration of the deed in question. Abdus Sobhan Sheikh vs Kazi Moulana Jabedullah and others 52 DLR 289. Section 115– By attestation to deed Exhibit A(2) the plaintiff cannot be held to have knowledge of the contents of the deed in order to be estopped under section 115 of the Evidence Act. Wahida Begum vs Tajul Islam 52 DLR 491. Section 115– Promissory Estoppel is a principle evolved by Courts on the principles of equity and to avoid injustice. Where one party by his words and conduct make the other party a clear promise that promise would be binding upon the former who would not be entitled to go back from it. Government of Bangladesh, & others vs ASM Firojuddin Bhuiyan 53 DLR 522. Section 115– In a case, as in the instant one transaction by Exhibit B, where transfer is challenged after lapse of considerable long time then recital in the document being of long past can legally be considered, in the light of observation in the case reported in AIR 1916 PC 110, genuine and the court may taking the recital along with the circumstances go for making its decision as to validity of the deed. Jitendra Nath Mistry vs Abdul Malek Howlader and ors 54 DLR (AD) 106. Seciton 115– Mere offer and decline to offer do not constitute any waiver in law in order to act as an estoppel to deny preemption. Kamaluddin and others vs Md Abdul Aziz and others 56 DLR 485. Section 116– Promissory Estoppel– Promissory estoppel not attracted when a promise would take the shape of contract by making it enforceable as a contractual obligation. Sarping Matsajibi vs Bangladesh 39 DLR 78. Section 116– Estoppel deals with questions of fact and not with question of right. DCCI vs Secretary 39 DLR 145. Section 116– Estoppel by contract or tenant’s estoppel–explained. The estoppel as described in this section is known as tenant’s estoppel or estoppel by contract. This estoppel is founded upon a contract between the tenant and the landlord. It provides that when a person enters into possession of immovable property as a tenant of another person then neither he nor anybody claiming through him shall be permitted during the continuance of the tenancy to deny the landlord’s title however defective that title might be. This necessarily implies that in case the tenant sets up a claim of title in himself he shall first surrender possession to the person from whom he had taken it. Abdus Sattar vs Mahiuddin 38 DLR (AD) 97. Section 116– A device resorted to by tenant whereby he defaults to pay rent and when sued for eviction, sets up plea of no relationship of tenant and landlord–Such a plea is unavailing when origin of tenancy is proved. Abdus Sattar vs Mohiuddin 38 DLR (AD) 97. Section 116– Section 116 is no bar when landlord’s title is lost or extinguished–If tenant claims a title in himself, he must surrender possession to the landlord. If the landlord determines the tenancy, but the tenant continues to stay on still bar of section 116 will operate. Abdus Sattar vs Mohiuddin 38 DLR (AD) 97. Section 116– Mere non–payment of rent does not snap landlord and tenant relationship. Abdus Sattar vs Mahiuddin 38 DLR (AD) 97. Section 116– On the death of the tenant the tenancy can be determined by either party, if tenant’s heirs stay on they must pay rent or quit. Abdus Sattar vs Mohiuddin 38 DLR (AD) 97. Section 116– Tenant’s Estoppel–Once a tenancy is established the tenant must vacate first and then he can claim independent title. Ramisunnessa Bibi and another vs Soleman Molla and others 48 DLR 31. Section 116– A tenant cannot set up title to a property of which he is a monthly tenant without surrendering possession to his landlord. Haji Kasimuddin Mondal being dead his heirs Afroza Bewa and others vs Md Jalaluddin Pramanik 48 DLR (AD) 205. Section 116– A tenant cannot set up title to a property of which he is a monthly tenant without surrendering possession to his landlord. Rabiul Alam and another vs Sree Bidhan Kumar Deb, Advocate 50 DLR 286. Section 118– In a case of carnal offence the prosecution is to be believed in awarding conviction to the offender even without material corroboration, if the victim’s evidence is found believeable and trustworthy and does not suffer from any infirmity and inherent disqualification. Shamsul Haque (Md) vs State 52 DLR 255. Section 119– In case of a witness who is dumb, provisions of section 119 • of the Act is applicable. Such witness may make statement in writing or by using signs. But in case of a witness who is both deaf and dumb, there is no scope of giving any evidence as such witness cannot hear any question. Morshed (Md) @ Morshed @ Md Morshed Alam vs State 53 DLR 123. Section 133– In a case where bitter enmity is admitted between the parties it required as a rule of prudence that there should be some such corroboration of the evidence of the interested witness as may inspire confidence in the mind of the court. Abul Kashem vs State 56 DLR 132. Section 133– This section makes evidence given by a witness in a judicial proceeding admissible in a subsequent judicial proceeding where the question in controversy in both proceedings is identical and where the witness is dead, or cannot be found, or is incapable of giving evidence. State vs Ershad Ali Sikder and others 56 DLR 185. Section 133– Though conviction of an accused on the testimony of an accomplice cannot be said to be illegal, Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. State vs Ershad Ali Sikder and others 56 DLR 305. Sections 133 and 114(b)– Though the conviction of an accomplice cannot be said to be illegal yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration• in material particulars. State vs Ershad Ali Sikder and others 56 DLR 185. Sections 133 and 114(3) – The combined effect of sections 133 and 114(b) is that though a conviction based upon accomplice’s evidence is legal, the Court will not accept such evidence unless it is corroborated in material particulars. The corroboration must connect the accused with the crime. State vs Ershad Ali Sikder and others 56 DLR 185. Section 134– Law does not require any particular number of witnesses to prove a case and conviction may be well–founded even on the testimony of a solitary witness provided his credibility is not shaken. Al–Amin and 5 others vs State 51 DLR 154. Section 134– It is true that under section 134 of the evidence Act conviction can be based on the Evidence of a single witness but the evidence of that witness must be of unimpeachable character. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466. Section 134– Non–examination of nearby people not fatal to the prosecution case when there are eye–witnesses of the occurrence. Milon @ Shahabuddin Ahmed vs State 53 DLR 464. Section 134– The trial Court discarded the evidence of PW 2 as to the plaintiffs’ case of possession since 1963 completely overlooking the provision of section 134 of the Evidence Act. Shishir Kanti Pal and others vs Nur Muhammad and others 54 DLR 440. Section 134 – If a witness is otherwise found reliable or independent or non–partisan or disinterested, the evidence of such a lone witness can be taken as the foundation in making decision as to an issue in the case. Shishir Kanti Pal and others vs Nur Muhammad and others 55 DLR (AD) 39. Section 134– Though in certain cases even a single witness is enough to prove the case of a party but in the present case the above principle should not be applied, especially when PW 1 is an interested witness, and evidence as to consideration money was not uniform. Siraj Mia (Md) vs NasimaAkhter and anothe 55 DLR 554. Section 134– Corroborative evidence is not an imperative component in every case of rape. The rule is not that corroboration is essential before there can be a conviction. Shibu Pada Acharjee vs State 56 DLR 285. Section 134– The well-known maxim which is a Golden Rule that “evidence has to be weighed and not counted” has been given statutory placement in section 134 of The Evidence Act which provides that no particular number of witnesses shall in any case be required for the proof of any fact. Shibu Pada Acharjee vs State 56 DLR 285. Section 135– Recalling a witness– No explanation having been given as to why defendant–petitioners failed to cross-examine PW 1 and what prejudice will be caused in the absence of his cross-examination the judge rightly rejected the application for recalling the witness. Abu Bakkar vs Akbar Ali Biswas 45 DLR 62. Section 137– Court is to consider the evidence of witnesses in their examination–in¬ chief in juxtaposition with their cross-examination. Abul Khair and another vs State 55 DLR 437. Section 137– The wife at the relevant time of occurrence was at her husband’s house and that she is subsequently found dead an obligation is cast upon the defence to account for the circumstances leading to the death of the deceased failing which the husband will be responsible for the death of the deceased. Gias Uddin vs State 55 DLR 328. Section 138– Re-examination shall not be allowed to destroy the effect of cross--examination. Ihteshamur Rahman vs Masuda Khatun and others 50 DLR 159. Section 138– The right of the adverse party to cross–examine a witness is never confined to the facts deposed to by the witness in his examination–in–chief but it extends to all matters relating to the suit. The adverse party has the right to cross–examine a witness on all facts relevant in the suit. Khalilur Rahman (Md) vs Asgar Ali 52 DLR 145. Section 145– Decision of the majority Judges– Defendant’s deposition Exts.5 and 6 are inadmissible under section 19 of the Evidence Act. Notwithstanding the challenge given as to the admissibility of Exts.5 ‘and 6 which have been treated as substantive evidence, the High Court Division took the view that those previous statements are admissible for the purpose of contradiction. With respect, this conclusion is not founded on law. Exts.5 and 6 are inadmissible in evidence and they cannot constitute as admission within section 19 of the Evidence Act. Khorshed Alam vs Amir Sultan 38 DLR (AD) 133. Section 145– View of Shahabuddin, J (minority)– Deposition by the defendant in previous rent and money suits to the effect that he did not know his mother’s name or where she lived etc.–He may be confronted with such deposition in a subsequent case under section 145 Evidence Act to test his veracity. Khorshed Alam vs Amir Sultan 38 DLR (AD) 133. Section 145– Principle of law regarding cross–examination –failure of a party to cross--examine the witness of his adversary on material evidence–effect of– This rule of cross¬-examination is not merely “a technical rule of evidence” but also “a rule of essential justice” Nur Mohammad vs Sultan Ahmed 40 DLR 369. Section 145– The recital of kabala per se shall not go into evidence unless the person who made the recital raises any objection therefor. Feroja Khatoon vs Brajalal Nath 43 DLR 160. Sections 145 and 157– Statement recorded behind the back of the accused the same cannot be treated as substantive evidence against him. Such statement can be used to corroborate or to contradict a statement made in the court in the manner provided in sections 145 and 157 of the Evidence Act. Hobi Sheikh and another vs State 56 DLR 383. Section 154– Evidence of the witness, who has been declared hostile, would ipso facto not be of any worth for the prosecution, rather if on consideration of the evidence of such kind of witness it is found that evidence on record either has established the case of the prosecution or that prosecution case does not stand scrutiny then whatever order in any respect is made by the Court the same is very much sustainable in law. Mobarak Hossain alias Mobarak vs State 56 DLR (AD) 26. Section 155– Contradictory statement as to the presence of convict Captain Kismat Hashem at Road No. 32 in the house of Bangabandhu Sheikh Mujibur Rahman casts a great doubt. State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287. Section 155(3)– In the instant case except asking the PW 1 about filing of the written statement, the content thereof with which the PW 1 presently making any inconsistent statement was not put to him in order to enable the respondents to explain the circumstances against him. In that view of the matter, the content of written statement though contradictory to the defendant’s own case of transfer, could not be produced and relied in order to contradict PW 1. Ahmed lmpex (Private) Ltd & others vs Moqbul Ahmed 56 DLR (AD) 92. Section 156– The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of a victim of sex crime alone to convict an accused where her testimony inspires confidence and is found to be reliable. Al–Amin and 5 others vs State 51 DLR 154. Section 157– Absence of corroborative evidence does not necessarily mean lack of legal evidence. Ayub Ali (Md) vs Abdul Khaleque 56 DLR 489. Section 3— Arbitration is a settlement of a dispute on rendering a decision by Arbitrators and not a decision reached by a Court of law, Civil, Criminal or Revenue but of Arbitration. Arbitrator has been excluded from the definition of the word "Court" as per section 3 or The Evidence Act, 1872. Arbitrator is not bound by technicalities of The Evidence Act and he does not adjudicate nor does he sit as a Court or Tribunal. Proceeding before Arbitrator need not be conducted with such meticulous care as is required in ordinary Court of law. Chittagong Steel Mills Ltd and another vs MEC Dhaka and others 10 BLC 230. Sections 3 and 68— Even if the ' Aposhbontannama', the Ext Ka is excluded from judicial consideration since the document is not admissible in evidence on the ground that the original was not called for and the photostat copy cannot be admitted in evidence the document itself is not a registered instrument according to the provision of Registration Act and that the same is not proved by any attesting witnesses but there are other materials to determine the question of oral partition. As there is no allegation of inconvenience to the enjoyment and possession of the plaintiff's property the claim of the plaintiff as regards infringement of privacy does not stand to reason. It cannot be said that the defendant's six storied building is still part of the undivided dwelling house of the plaintiffs. Moreso, the decision of the Appellate Division on 13-1-98 in the matter of pre-emption case under section 24 of the Non-Agricultural Tenancy Act, has further affirmed the right of the defendant No. 1 to hold his purchased property. Having failed to pre-empt the land the suit has been instituted as a second device to oust the defendant No. 1 from his property and thus, from the materials on record, oral and documentary, the conclusion can be drawn that the suit property was amicably and orally partitioned between the co-owners. Dr Ismat Mirza and other vs Md Mosaddek Hossain and ors 7 BLC 90. Sections 13,42 and 43— The law is now settled that a Judgment whether inter parties or not may be conclusive evidence against all persons of its existence, date and legal effect, as distinguished from the accuracy of the decision rendered. The former judgments and decrees were not themselves a transaction or an instance within the meaning of section 13 of the Evidence Act, but the suit in which they were made was a transaction or an instance in which the defendant's right of possession was claimed and recognised and that to establish that such transaction or instance took place the previous judgment was the best evidence. Robert Pinaru vs Moulana Habibur Rahman and others 8 BLC (AD) 115. Section 18— Per Mohammad Gholam Rabbani ] : The charge was not admitted by the respondent rather he denied it as baseless in the reply stating the whole truth giving the reason for victimising him by the complainant which cannot be an admission to the charge, but it was a part of his defence and it was not considered as such by the Enquiry Officer. Even if it is conceded that the statements made by the respondent amounted to admission of misconduct, he could not be removed from service for the alleged admission without holding a formal enquiry in accordance with rules. Admittedly, instead of the Registrar, the Chief Justice himself proposed for major punishment to both the accused and accordingly, second show cause notice was issued but the Chief Justice was not given to consider the replies and the Registrar imposed major punishment on the respondent and in fact acquitted the other and such action must be held to be malafide, biased and illegal. Registrar, Supreme Court of Bangladesh vs Md Shafiuddin and another 6 BLC (AD) 141. Section 18— The plaintiff opposite party No. 1 in his deposition admitted his negligence and on the face of such admission it was open to the authority concerned to take appropriate action against the delinquent. MD. IFIC Bank Ltd vs SM Icjbal Hossain and others 10 BLC 370. Section 18— From the amendment of the written objection filed by the pre-emptees in both the cases it is found that the pre-emptees admitted the pre-emptors as, co-sharer in the case jote by deed of Heba executed by their father Amiruddin Shah in favour of the pre-emptors and other brothers. In view of such admission, which has been overlooked or was not brought to the notice of the Courts below it is clearly established that the pre-emptors are co-sharers in the case jote and the finding by the Courts below, that the pre-emptors are not co-sharers being contrary to the materials on record are not maintainable and are liable to be set aside. Elahi Boksa & Hedo and another vs Maqbul Hossain Barker and others 10 BLC 535. Sections 18, 21 & 68— The evidence regarding the settlements is hopelessly inadequate. PW 1 had no personal knowledge of the Amalnama. There is none comes to prove it. PW 3 says that he took settlement on the basis of amalnama. But in both the cases neither the writers nor the subscribes nor the witnesses were examined to prove the amalnama. The plaintiff No. 2 made out a nadabipatra in favour of the school and her husband is a witness to it. PW 2, Moklesur Rahman said in his deposition that he took lease of the land in 1972 and renewed the same for 3/4 years and thereafter discontinued. This lends support to the evidence led by DW 1, Tehsilder that the land has been vested in the government as non-resident property and the authority has been giving the same in lease from one lessee to other. It is clear that the plaintiffs are out of possession according to their own admission and, as such, the DWs cannot be disbelieved regarding possession of the defendant No. 3, the school. Nazibul Islam (Md) vs Government of Bangladesh, represented by the DC, Rajshahi 10 BLC 394. Section 43— A criminal proceeding is not admissible and cannot be taken into consideration in deciding a civil proceeding. Shamsul Huda (Md) and another vs Mahmooda Khatun and others 6 BLC 82. Section 43— Since the Exhibit 12 series and Exhibit 19 are judgments and orders of various Courts which speak of assertion of right of the plaintiff as a sole surviving heir of Ismail and since that assertion of relationship is a fact in issue in the present case, they were rightly considered by the trial Court as good evidence in terms of section 43 of the Evidence Act and hence the trial Court has not committed any illegality in declaring the plaintiff was entitled to inherit the leasehold right in the shop as it is now well settled that monthly tenancy is heritable. Islamic Foundation Bangladesh vs Firoz Alam & others 6 BLC 599. Section 43— From the Judgments of Title Suit No. 3 of 1952 and Title Appeal No. 96 of 1953 it appears that the land of suit jama was amicably partitioned among the predecessors of the plaintiffs and defendants as back as about 30 years before the institution of that suit and on the basis of which their predecessors acquired their suit property. So, it cannot be said that the plaintiffs or their predecessors never got exclusive right, title and possession of the 200 Ajutangsha land of plot No. 7612. Bibi and others vs Md Mahbub and others 10 BLC 397. Section 43—"Judgment inter parties or not—Contents therein to what extent admissible— A previous judgment is admissible also to prove statement or admission or an acknowledgment made by a party or the predecessor-in-interest of a party in his pleadings in a previous litigation. Similarly, a judgment narrating the substance of the pleadings of the parties to a litigation is admissible to establish the allegations made by them on the occasion. Badal Chandra Das and others vs Amena, Khatun 10 BLC 403. Section 45— It appears that the learned Joint District Judge on assessment of evidence on record found that the petitioners' application under Order IX, rule 13 was barred by limitation and could not prove the fact of her illness. The High Court Division after considering the facts and circumstances of the case and the decision placed before them rightly held that without examination of doctor the medical certificate granted by him regarding illness is inadmissible in evidence. Anwara 'Begum and others vs Shah Newaj 8 BLC (AD) 160. Sections 45 and 73— The safe and best course for the Court would be to avoid the practice of comparing the writing or signature etc. and should not stake its judgment on the opinion formed or view taken upon resorting to risky or, in other words, unsatisfactory and dangerous procedure and the desired course should be to go for microscopic enlargement and expert advice since the science of examination of signature, writing, etc. for determination of similarity has advanced enough and it has reached to the stage of accuracy and certainty as well as expertise skill is also available. Tarak Chandra Majhi vs Atahar Ali Howlader and others 8 BLC (AD) 67. Sections 45 and 73— It appears that the learned trial Court rightly rejected the application of the plaintiff to send the disputed signature to the hand writing expert as there are sufficient materials on record to determine the point. Learned trial Court rightly rejected the application for expert on the ground .of delay as well because such application was filed after a lapse of more than one year from the date of filing of the written statement where the defendant denied the bainapatra in question. Bazlur Rahman and another vs M.d Manik Ali 6 BLC 624. Sections 45 & 101— The learned single Judge has rightly held that the onus was shifted upon the defendant No. 1 to show that the summons of the earlier suit was served upon the plaintiff and he will have to prove further that the 'soleh' decree was not obtained by practicing fraud and collusion. The finding of the lower appellate court that the plaintiff put her thumb impression on the solenama is based on conjecture. Kartic Chandra Barker and others vs Anarathi, Mondal and other 8 BLC (AD) 158. Sections 45 & 106— Since death to the wife was caused while she was residing in the house of her husband, the convict petitioner, he is competent to say how death occurred to his wife and that the explanation which he offered having been found untrue, the conviction and sentence that was passed by the learned Sessions Judge has rightly been affirmed by the High Court Division. Abul Hossain Khan vs State 8 BLC (AD) 172. Sections 63 & 101— Section 64— The appellate Court appears to have relied on the sale certificate and writ of delivery of possession filed first time in appeal but there is no order admitting the same as additional evidence and marking them as exhibits and in such circumstances the Court of appeal was wrong in relying on sale certificate and the writ of delivery of possession in proof of auction sale and delivery of possession as well. Abul Kashem Hozvlader vs Sultan Ahmed and others 9 BLC 333. Section 64— It appears that the appellate Court discarded the deed of exchange and the Heba-bil-ewaz executed in favour of the plaintiff by his father simply because those were not admitted into evidence in accordance with law but he arrived at such finding without considering that the executants of the said deeds never disputed the execution thereof rather the written statement and the .evidence on record support such execution and the said two documents were admitted into evidence in presence of the defendants without any objection. Aminul Hoaue (Md) vs Sanat Kumar Dhar and others 9 BLC 322. Sections 65 and 101— Section 67 and 68— Section 68— It appears that the disputed bainapatra, the Ext 1 has been proved by the testimonies of the PWs 1, 2, 3 and 5 of them PWs 2 and 3 are the attesting witnesses and PW 5 is the scribe and all these witnessess uniformly stated in their evidence that Ganesh executed the said bainapatra in their presence on receiving Taka three lac and one as earnest money when the defence totally failed to shake their consistent and corroborative testimony in any manner whatsoever. Naru Gopal Roy vs Parimal Rani Roy and others 6 BLC 323. Section 68— Out of the three attesting witnesses of the agreement, one of them was examined in Court who is close relation of the plaintiff as well as a chance witness. When no other attesting witness of the agreement has been examined to prove such agreement, the plaintiff's case regarding agreement is doubtful. Shaikh Haji Musa Hakkani vs Kazi Md Abdul Majed and ors 7 BLC 534. Section 70— Mere inclusion of a plot in the schedule of a deed does not create any title when the defendants failed to prove that their predecessor Asia Khatun acquired any right or title in the land of plot No. 7612. Bibi and others vs Md Mahbub and others 10 BLC 397. Sections 70 and 167;— Since one of the executants came to the court and admitted the execution of the plaintiffs' kabala by him and by his brother, the attending witnesses were not at all necessary to depose in view of section 70 of the Evidence Act. Any objection as to admissibility of documents has to be taken at the earliest opportunity. No such objection having been taken at the trial Court and that improper admission or rejection of evidence by itself could not be a ground for reversal of the decision of the trial Court. Sharfuddin Ahmed and another vs AliAkbar 10 BLC 266. Section 73— The High Court Division after comparing the signatures of Ganesh appearing in the bainapatra with his admitted signatures in the plaint and the compromise petition filed in title suit No. 13 of 1998 has been satisfied that these are the products of the same hand and the learned Subordinate Judge was fully justified in holding that Ganesh duly executed the bainapatra on receipt of earnest money from the plaintiff without sending the same to the hand writing expert as the High Court Division has consistently been holding that the art of calligraphy is yet to attain any degree of precision so that the court can place its explicit reliance on it. The Court being the expert of the experts was itself quite competent to compare the same exercising the power given by section 73 of the Evidence Act. Naru Gopal Roy vs Parimal Rani Roy and others 6 BLC 323. Section 73— While comparing the signatures of the defendant Nos. 1 and 2 as appearing in Exhibit 4 with their signatures as appearing in the written statement, deposition sheet and vokalatnama filed in the High Court Division, it appears that the signatures as appearing in Ext 4 with respect to mode, style and manner do not tally with those as appearing in the written statement and deposition sheet and as such, the case of the plaintiff regarding the Ext 4 is not proved. Shaikh Haji Mitsa Hakkani vs Kazi Md Abdul Majed and ors 7 BLC 534. Section 73— Upon Perusal of the Ext. 4-kha, a copy of the notice under section 106 of the Transfer of Property Act dated 24-7-1993, learned SSC Judge came to his finding that the tenant-petitioner himself received the copy of the notice by signing his name on the copy of the said notice on 1-8-1993 and on comparison with the signature of the tenant-petitioner with other documents on record, he reached to his decision that the signature of the tenant-petitioner appearing in Ext 4-kha tallies with that of other documents on record and such finding of fact being based on evidence on record cannot be disturbed by the High Court Division in its revisional jurisdiction. Mohammad Islam vs Rahicha Khatoon 8 BLC 37. Section 73— So far as the genuineness of the Exhibit 2 is concerned, the learned Subordinate Judge has made comparative study of the executing signatures of this deed with those of an old unassailed registered sale deed dated 25-6-68 which is admitted in evidence. The Court is quite competent to ascertain genuineness of execution of document by making such comparison under section 73 of the Evidence Act. The High Court Division closely examined those two sets of signature of Habibur Rahman Khondaker appearing on the two deeds and found those to be of the same hand. Sajida Begum and others vs Abdul Kader and others 8 BLC 306. Sections 74 and 76— The consistent view of the apex courts of this Sub-Continent is that not only a gift under Mohammadan Law but also under the Transfer of Property Act, a gift must be coupled with acceptance and delivery of possession of the property. Mere registration of such deed of gift is not at all sufficient, something more has to be done for making a valid gift which is lacking in the present case. Bangladesh, represented by the Secretary, Ministry of Housing and Public Works & another vs Shirely Anny Ansari 6 BLC (AD) 85. Sections 76(6) and 79— In terms of section 76(6) of the Evidence Act the deed of conveyance dated 19-8-1965 may be proved by producing the original, or by a copy thereof certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of Bangladesh Consul or diplomatic agent, that the copy has been duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country. Section 79 of the Evidence Act provides that the Court shall presume such certified copy as genuine. Such certified copy of the said deed of reconveyance as produced by the appellant was taken into 'consideration by the Appellate Division as idditional evidence. Rupali Bank Ltd and another vs Shawkat Am Salauddin 10 BLC (AD) 14. Section 90— The Courts below were not justified in demanding the proof required in normal case of proof of private document less than 30 years old and this caused a miscarriage of justice. The presumption afforded in section 90 of the Evidence Act is a statutory recognition as to the genuineness of the document, and its execution. Jamir Ali and ors vs Dilfamz Bibi land ors 6 BLC 588. Section 90—Explanation— Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such to render its origin probable. Therefore, the documents as produced by the plaintiff from his proper custody and to that extent, no objection was raised, therefore it has been admitted that it belonged to the plaintiff. Badal Chandra Das and others vs Amena Khatun 10 BLC 403. Section 90— Admittedly, the documents, the Exhibits 1 to 6 are more than 30 years old and coming from the proper custody have certainly carried a legal presumption of due execution and correctness under section 90 of the Evidence Act and the lower appellate Court failed to notice this vital issue and committed flagrant violation of law resulting in miscarriage of justice. Siddiq Ali (Md) alias Abu Siddiq vs Md Harun Mia and ors 10 BLC 492. Section 91— Sections 91 and 92— Section 101— When the defendants had denied execution of bainapatra, the onus was on the plaintiff to prove it which the plaintiff failed to do so, the High Court Division has rightly found that the learned Subordinate Judge was not correct in coming to the conclusion of genuineness of bainapatra or payment of earnest money or of the delivery of possession and therefore set aside the impugned Judgment and decree of the plaintiff's suit. Gofran Miah (Md) vs Raniza Khatoon and others 6 BLC (AD) 131. Section 101— Paintiff has to prove his case independent of the weakness of the defence case. From the materials on record if appears that the plaintiff has failed to prove genuineness of their documents and also their possession which escaped the notice of the High Court Division and it only discussed the evidence of the defence and finding fault dismissed the defence case and restored the decree passed by the trial Court in favour of the plaintiff which is not sustainable. Golzar Ali Pramanik vs Saburjan Bewa and others 6 BLC (AD) 41. Section 101— The evidence as adduced by the plaintiffs manifestly proved that they were finantially solvent and they were always ready to deposit the balance consideration money but the defendants produced no materials on record proving the price of the suit property was higher at the relevant time and hence the defendants signally failed to discharge the onus which was heavily on them when the learned trial Judge misdirected himself in placing the onus upon the plaintiffs. It is posited here that inadequacy of price can hardly be a ground for refusing specific performance of contract. Shamsul Huda (Md) and another vs Mahmooda Khatun and others 6 BLC 82. Section 101— Decree iri favour of the plaintiff can be awarded only on the strength of the plaintiff's case and not on the weakness of the defendant's case. Fatema Khatun vs Fazil Mia 6 BLC 241. Sections 101— It is a cardinal principle of law that the plaintiff has to prove his case independent of the weakness or defects of defendant's case. Even if a foreign judgment is admissible in evidence, it does not improve the plaintiff's case as he has hopelessly failed to prove the alleged agreement for exchange with Ghosh brothers and the plaintiff's suit is barred by limitation as he had been out of possession for long 20 years from 1949 to 1969. Moksed Ali Mondal vs Abdus Samad Modal 9 BLC (AD) 220. Section 101— The High Court Division failed to consider the settled principle of law that in order to get a decree the plaintiff must prove his own case and cannot rely on the weakness of the case of the defendants and in the present case the plaintiff failed to prove even their plaint case and introduced facts which were beyond the plaint. Additional Deputy Commissioner (Rev) and others vs Farhad Begum and ors 9 BLC (AD) 235. Section 101— The established rule is that at first plaintiff is to prove his case and then onus shifts upon the defendants to establish their case or to. disprove plaintiff's case. Abu Naser Md Wahidun Nabi vs Balai Roy 10 BLC (AD) 58. Sections 101 and 114(g)— It appears that the trial Court gave the finding of the possession of the suit land in favour of the plaintiffs which was not reversed by the appellate Court. It further appears that the DW 1 deposed that they possessed the suit land through bargadars, therefore, it was incumbent upon them to examine the bargadars and for non-examination of the bargadars an adverse presumption can very much be drawn against the defendants under section 114(g) of the Evidence Act. Ramesh Chandra Mondal and ors vs Hemayet All Sheikh and ors 9 BLC 525. Section 103— Since the defendants have come up with a specific case, the burden shifts on the defendants to prove their part of the said specific case and the defendant Nos. 1 and 2 haying failed miserably to discharge their onus to prove their part of the case, the defendants are liable to pay the cheque money amounting to taka one lac eighty-five thousand when the defendant No. 1 admitted that he put his signature on the cheque. Shaikh Haji Musa Hakkani vs Kazi Md Abdul Majed and ors 7 BLC 534. Section 103— Plaintiff discharged his burden of establishing the fact that defendant sent the rent for the month of May, 1988 after June 15, 1988. It was requirement for the defendant to..: disprove the said fact, but he did not take any step to disprove the oral as well as documentary evidence produced from the side of the plaintiff in assertion of the fact that rent for the month of May, 1988 was sent by money order after June 15,' 1988. Bulbul Begum vs Md Sanwar Belal and anr 8 BLC (AD) 97. Sections 107 and 108— The evidence of PWs 1 and 2 that Md Ismail has not been heard of since 24-12-71 which made the section 108 of the Evidence Act applicable as it provides that a person is presumed to be dead if he is not heard of by his family members and relations for more than 7 years when section 107 of the Evidence Act speaks of presumption for continuance of-life for more than 30 years and in the facts and circumstances of the present case section 107 of the Evidence Act has no manner of application. Islamic Foundation Bangladesh vs Firoz Alam & others 6 BLC 599. Section 110— Defendant-appellants have failed to prove the acquisition of title by adverse possession establishing the existence of the essential ingredients of section 7(2) of the Non-Agricultural Tenancy Act, 1949. No presumption can be drawn under section 110 of the Evidence Act, 1872 in the absence of those ingredients. Plaintiff-respondent has proved their title by registered deed dated 13-11-7? for valuable consideration which has been believed by the Courts below. Claim of long possession of the defendant-appellants remains precarious because of the finding of title of the suit land in favour of the plaintiff-respondent. Gouri Das and ors vs ABM Hasan Kabir 7 BLC (AD) 140. Section 110—Presumption of title— When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner, presumption of title from possession can arise only when facts disclose no title in any party. In this particular case, the plaintiff-opposite parties have long uninterrupted possession and also have dakhilas and the rent receipts thus follows title. The possession of the plaintiff is not prima facie wrongful and secondly, the title of the defendant is not proved. The plaintiff paid rent by mutating her name and also paying rent to the Municipality and to that extent the defendant did not raise any objection. Badal Chandra Das and others vs Amena Khatun 10 BLC 403. Section 111— The question of fiduciary relationship between the executant and the recipient of the deed in question was not raised in the pleading and no evidence was led to that direction proving bonafide or good faith of the transaction as contemplated under section 111 of the Evidence Act. It is the appellate Court who for the first time of its own accord pointed out the said issue which has not been borne out in the pleading and, as such, bereft of any legal consideration. Although section 111 of the Evidence Act provides for special protection to the pardanashin lady so to say old illiterate and village woman but provision of such law is not applicable in the present case. Raoshanara Begum and am vs Sokhina Khatun and ors 10 BLC 48. Section 115— Respondent No.4 evidently is junior to the writ-petitioners who are the members of the General Administrative Cadres and they are entitled to promotion according to the joint seniority list prepared in 1991 with all benefits attached to their posts and such benefits cannot be taken away as has been done by the impugned orders as those fail on the doctrine of promissory estoppel. Chairman, Bangladesh Water Development Board, WAPDA & anr vs Kazi Hedaytul Islam and others 6 BLC (AD) 31. Section 115— It is by now well settled that consent or waiver cannot give jurisdiction where there is inherent lack or absence of it and in that case the order is a nullity. Registrar, Supreme Court of Bangladesh vsMd Shafiuddin 6 BLC (AD) 141. Section 115— Accepting the offer of the petitioner to purchase the property in question the Bhawal Court of Wards Estate filed an application in printing form on 19-1-97 required under section 184(1) of Income Tax Ordinance of 1984 stating that the property in question would be sold to the petitioner at a consideration of Taka three lac and odd which has created promissory estoppel in favour of the petitioner and against the respondents and hence the impugned notice published in the daily newspaper inviting tender for long term lease of the property in question is without any lawful authority and is of no legal effect. Meherunnessa vs Bangladesh and others 6 BLC 209. Section 115— The claim of the plaintiff-bank cannot be hit by the Doctrine of Promissory Estoppel as the plaintiff has not asked the defendants to apply for remission of the interest under the Circular dated 7-10-1991 issued by Bangladesh Bank when the said Circular has got no force of law and not binding on the plaintiff-bank and also the said Circular is not a mandatory one but a directory one. Pubali Bank Ltd vs Abdul Kader and anr 7 BLC 656. Section 115— The importers "having acted on the promise made"1' by; the appellants under section 25A of thd Act Jto accept the price determined by the Government appointed inspectors the appellants cannot go back on that promise as it was meant to be binding on them. The Appellate Division is in agreement with the decision of the High Court Division that SRO No. 113 dated 11-5-97 cannot affect the vested right of the respondents to be assessed by CRF price. Commissioner of Customs and others vs Monohar AH and 26 others 8 BLC (AD) 87, Section 115— When the DW1 admitted in his cross-examination that they knew from monthly statements of jute stock that more than 4,000 bales of jute were used to be stored in the godown but they did not raise any objection resulting thereby they acquiesced the1 excess storage of jute. In such circumstances the repudiation of claim of plaintiff No. 1 because of storage of excess quantity of jute in viola tion of clause 9(a) of the absolute: warranties had no legal basis and was done illegally. Fibre Deals Ltd vs Sadharan Bima Corporation and others 8 BLC 337. Section 115—Promissory estoppel— The respondent-Government cannot be allowed to act inconsistently with its promise made by memo dated 10-4-1995 which is binding on it. The Government thus cannot be exempted frorn its liability to carry out its promise given to the petitioner to sell the three-fourth share of the property and by the, doctrine of promisspry estoppel the Government cannot escape from its liability saying that the promise was merely an administrative decision. Asaf-JKhan vs Court of Settlement, First Court & ors 8 BLC 1. Section 115—Legitimate expectation— The memo dated 10-4-1985 informing the petitioner No. 1 to pay the price of three-fourth share of the property and the resolution of the Abandoned Property Management Board dated 17-12-92 maintaining the earlier decision to sell the three-fourth share of the disputed property to the petitioners gave rise to a legitimate expectation of the petitioners to have completed the, legal formalities for transferring the property in question to them. Subsequent silence; . of, the Government authority amounts1 to denial of such expectation which is unfair. Accordingly, the respondent-government are directed to transfer the three-fourth share of the property in question within 60 days from the date of receipt of the price fixed. Asaf Khan and others vs Court of Settlement, First Court and others 8 BLC I . Section 115— The law is well settled that the moment a tenant denies the title of his landlord he forfeits his right to stay in the premises. Moreso, the judgment and decree of the trial for ejectment on the ground of: default in payment of rent and bonafide requirement are borne out by the evidence, oral and documentary, on record which need not require to be interfered. Saifuzzaman (Md) vs, Abdur Rahman 9 BLC (AD) 270. Section 115— Respondent having submitted to jurisdiction of arbitrator by filing joint petition and accepting the order of the Court appointing Mr Asaduzzaman as the, sole arbitrator and in participating in arbitration proceeding and in not challenging the authority of arbitrator to pass the award now cannot question the validity of the award. There had been waiver and acquiescence on the part of second party-respondent and the same is completely debarred from raising the question of jurisdiction for the first time in this appeal. A Latif and Company Limited vs Project Director, PL-480, Title 3, LGED & another 9 BLC 271, Section 115— It appears that by the earlier SRO,' the Government has made a promise that upon fulfilment of such conditions if the importers import taxicabs they will be given the benefit as mentioned thereirii The petitioners having acted upon accordingly the Government now cannot go back upon it. If they go back it will be inequitable. So it appears that the doctrine of promissory estoppel operates when one of the parties in reliance of the promise made by the other party acts to his detriment and in such case the other party should not be allowed to go back from his promise as the same would cause injustice on the party relying upon the said promise. Cab Express (BD) Ltd vs Commissioner of Customs and others 9 BLC 398. Section 115— Though the circular or administration instructions have been specifically declared as order making rule contained in Memo issued by the authority but the same may not be treated as statutory rules having no statutory backing but no such regular posts being available for regularisation a work-charged employee could not be regularised inasmuch as no such promissory estoppel could be claimed under the circumstances or the Government may be compelled to perform their duties as an obligation in the absence of any such legal footing for the appellant to be accommodated. Abdur Rahman (Md) vs Government of Bangladesh represented by the Secretary, Ministry of LGRD and Co-operatives and another 10 BLC (AD) 179. Section 115— The High Court Division finds that the respondent No.l Corporation and the Government are now estopped from denying the petitioners their opportunity to opt for usual retirement as assured them on 17-11-1999. Accordingly, the High Court Division views the impugned notification in Annexure-A to be the product of an opaque process constituting a deviation from a regular practice of prior consultation. The impugned notification as consequently formulated also makes a sudden deviation from the established service and benefit policy enunciated on 17-11-1999 and thereby negates the petitioners' legitimate expectation to be treated fairly and consistently with the notification dated 17-11-1999. In this regard, the High Court Division finds merit in the petitioners' contention that the impugned notification is to be deemed as having been passed without lawful authority and to be of no legal effect. BADC Employees Union and others vs BADC and others 10 BLC 643. Section 116— Once the relationship of landlord and tenant is established between the parties, the tenant is estopped from challenging the title of the plaintiff without surrendering possession in view of section 116 of the Evidence Act. Selina Begum vs Azizun Nessa 6 BLC (AD) 115. Section 137— It appears that in the absence of cross-examination of the PW and in the absence of contrary being proved by the defendants and in the absence of any legal pleadings having been made by any of the defendants, there is no case on the side of the defendants before the Court. Nazrul Islam (Md) vs NIMMoqbul Hossain and others 10 BLC 319. Section 137— Although the evidence of PWs 1 and 3 regarding possession of the land has not been controverted by cross-examining them but OPWs in their statements made positive assertion disputing the statements of PWs 1 and 3. Therefore, it cannot be said that the finding was not based upon non-consideration of the evidence on record, rather, such finding is based on overall consideration of the evidence on record. Majida Khatoon vs Md Mominul Huq and ors 8 BLC 250. Section 138— There is no provision in the Evidence Act permitting a witness to be tendered for cross-examination without his being examined in-chief. It is true that in the Sub-continent in criminal cases witnesses are tendered for cross-examination by the accused. This wide misuse of power is without legal sanction and is contrary to law. In fact, such practice is opposed to section 138 of the Evidence Act and the authority is the case reported in AIR 1995 SC 1601. This being the position there is no scope to tender a person for cross-examination by the adversary. Thus, these summons for direction falls to the ground having no legs to stand upon. Akhtaruzzaman Chowdhury and anr vs United Commercial Bank Ltd and others 9 BLC 562. Section—3 Video Cassette—Video cassette whether is a document and whether the same is admissible in evidence — Video Cassette is a document within the meaning of the Evidence Act and is accordingly admissible in evidence if otherwise relevant in course of a trial or proceeding — when sound recorded on a tape is admissible in evidence, the record of sound and picture should equally be admissible in evidence. Mrs. Khaleda Akhtar Vs. The State; 5BLD (HCD) 303 Ref. AIR. 1964 (SC) 72; AIR. 1968 (SC) 147; PLD l976 (SC) 57 (69) Cited,Section—8 Non-payment of rent whether relevant —Non-payment of rent alone will not extinguish or disprove a tenancy but when it is a question of the very existence of the status of a tenant, payment of rent would be relevant as the subsequent of the parties concerned. Sahabuddin Vs. Saluddin Talukder and others; 4BLD (HCD) 291 Section—13 Relevance of previous judgment — When a judgment, though not inter parties, may be admissible — Ordinarily a judgment cannot be used as evidence against a person who is a stranger thereto — But the judgment in a prior suit together with the plaint and other steps taken in connection therewith is evidence of an assertion by the holder of the judgment of the right which he claims to acquire and is then admissible in evidence of his right. Hazi Waziullah alias Waziullah Miah and others Vs. The Additional Deputy Commissioner (Revenue), Noakhali and Assistant Custodian, Vested and Non-Resident Property and others; 9BLD (AD)135 Ref. 21 DLR(SC)94; 2 C.W.N. 501; 58 Indian Appeals 125; A.I.R.1937(PC)69— Cited. Section—7 Admission— Value of admission made in the plaint of a previous suit which was withdrawn — In our law of evidence an admission made by a party in a plaint is admissible as evidence against him in other actions as well but such admission cannot be regarded as conclusive proof and it is open to the party to show that it is untrue. Abdul Kader Khan being dead his heirs All Akbar Khan and others Vs. Basek Khan being dead his heirs Shaju Bia and others; 8BLD(AD)22 Ref. A.I.R. 1967 (SC) 341; AiR. 1968 (Cal)550; (1952) 1 Macq 212: 8DLR3I I Cited. Section—20 Admission between the parties made in another proceeding — Such admission whether binds a party in a subsequent proceeding - Respondent’s admission that he was a tenant under the appellant estops him from denying appellant’s title in the suit premises — Admission by way of statements made in documents certified to be true copies by an authorised officer of the Government are admissible in evidence. Hajee Abdus Sattar Vs. Mahiuddin and others; 6BLD (AD) 224 Section—21 Admissibility of previous statement A party’s previous statement regarding a fact in issue is relevant and can be used against him if he has not appeared in the witness box at all — Even if the party appearing in the witness box is not confronted with his contrary previous admission, his such previous admission, if duly proved is admissible. Sultan Ahmed and others Vs. Mohammad Islam and others; 4BLD (HCD) 183 Ref: A.I.R. 1946 (Lah) 65 (PB); AIR. l957(AIl) 1(FB); AIR. 1966(SC)402 — Cited. Section—23 Admission made by a party in a letter written “without prejudice” — Admissibility of — The letter written by the appellant cannot be used to determine the extent of its liability, but in so far as it shows the relationship between the appellant and the respondent No. I as debtor and creditor and that they tried to settle the account, the letter can be taken into consideration. M/s. Haque Brothers (Carbide) Ltd. Vs. Bangladesh Shilpa Rin Sangstha and others; 5BLD (AD) 102 Ref. (1967) 72 C.W.N. 1 — Cited.Section—35 Entry in School Register — Its admissibility in evidence — Entry in School Register, Admit Cards and Board’s Certificate is that such Registers, Cards and Certificates are public documents, and are admissible in evidence, but the evidentiary value to be attached to the entries will vary from case to case. Abul Hashem (Bulbul) Vs. Mobarakuddin Mahmud; 6BLD (HD) 25O Ref. I.L.R. 14 (Lahore) 473; A.I.R. 1965 (SC)282 — Cited. Section—43 Findings of the Criminal Court are not binding on the Civil Courts — An order under section 145 Cr. P.C. cannot be treated as substantive evidence of possession — A judgment of acquittal in a criminal case only decides that the accused has not been found guilty of the offence with which he had been charged but the opinion and the conclusion expressed in the judgment are not admissible in evidence in civil Courts. Akhtar Hossain Sharif and others Vs. Munshi Akkas Flossain and others; 3BLD (AD)334 Section—43 Relevance of previous judgment — When a judgment, though not inter parties, may be admissible — Ordinarily a judgment cannot be used as evidence against a person who is a stranger thereto — But the judgment in a prior suit together with the plaint-and other steps taken in connection there with is evidence of an assertion by the holder of the judgment of the right which he claims to acquire and is then admissible in evidence of his right. Hazi Waziullah alias Waziullah Miah and others Vs. The Additional Deputy Commissioner (Revenue), Noakhali and Assistant Custodian, Vested and Non-Resident Property and others; 9BLD(AD)135 Ref.2IDLR (SC) 94; 2 C.W.N 501; 58 Indian Appeals 125: A.I.R. 1937(PC)69 — Cited. Section—43 Findings in the judgment of a criminal case — Whether can be relied upon in a subsequent civil suit between the parties — The findings and decision in a criminal case relating to the subject matter of the suit Scan n be relied upon — the fact that the accused was acquitted in a criminal case can be relied but not the opinion or conclusion expressed in such judgment. Md. Arshad Ali Vs. Abed Ali and other, 4BLD (HCD)150 Section—44 Benamdar — Whether a decree against a benamdar is binding on the real owner — Whether real owner can agitate in another suit that the decree obtained against his benamdar was fraudulent and not binding on him — It is now a settled principle of law that a decree on the ostensible owner is binding on the real owner — The plaintiff obtained the decree against the benandar fraudulently knowing full well that the real owner defendant was in possession — When a decree is obtained by the plaintiff practicing fraud it is not necessary to file a separate suit for avoiding such decree but the said decree can be impugned in another suit by such person aggrieved by such fraudulent decree — The real owner can avoid the transfer by his benamdar provided that no reasonable care was taken by the transferee in getting the transfer from the Benamdar — Transfer of property Act (IV of 1882) S.41. - Sultan Ahmed Vs. Md. Waziullah and others; 7BLD(HCD,)235 Ref. 24 DLR 63 — Cited. Section—44 Plea of Fraud—Under section 44 of the Evidence Act, whether it is competent for a party to a suit or proceeding to show that a docunient or a decree proved against him was obtained by fraud without having it set aside. Under section 44 of the Evidence Act it is competent for a party to a suit or other pro-ceeding to show in it that a document or a decree which has been proved against him by his adversary in that suit was obtained by fraud without having it set aside — When subsisting judgment, order or decree is set up by one party as a bar to the claim of the other, the latter can show that the judgment, order or decree was delivered by a Court without jurisdiction or was obtained by fraud, collusion and it is not necessary for him to have it previously set aside by a separate suit — A party to a proceeding is never disabled from showing that a document has been obtained by the adverse party by resorting to fraud. Abdul Gani Khan Vs. Shamser Ali and others; 12BLD (HCD) 90 Section—45 Expert’s opinion — Value of — Opinion of an expert, such as a hand-writing expert, is only a relevant fact — The Court will certainly consider the expert’s opinion but it is the Court which alone will come to its own conclusion regarding the matter — An expert’s opinion, particularly that of a handwriting expert, is always received with great caution. Ekias Khan and others Vs. Prajesh Chandra Das and others, 7BLD (AD) 142 Section—45 Assessment or evaluation of the evidence of hand writing expert — Requirements of law as to plaintiff’s obligation to prove his own case — Court to come to findings on assessment of the materials on record. Evidence of an expert witness is of very weak nature — The evidence and the opinion of the expert deserves consideration like any other evidence but such evidence has to be received with great caution — In assessing or evaluating the evidence of a handwriting expert on the question of genuineness of a signature, the following facts must be kept in view : (1) very few people sign in the same manner on all occasions. (2) expert opinion of the genuineness of the signature should be received with great caution, especially in a case when there is positive evidence of persons who saw a person sign. (3) all the test evidence by the expert in the matter of comparison of hand writing and signature is merely tentative in character. (4) Opinion is weak evidence. (ii) Law requires that the plaintiff must prove his own case to the hilt by cogent and sufficient evidence—He cannot succeed merely on the weakness of the defence — Disbelief of the defence case ipso facto does not make the plaintiff’s case believable. (iii) The Court is required to come to a finding on assessment of the evidence on record that the plaintiff has been able to prove his case — The plaintiff must prove his case with sufficient evidence to obtain even an expaite decree in his favour. Sheikh Salimuddin Vs. Ataur Raharnn and others; 11BLD (HCD)386 Ref. 7 BLD (AD)142; IODLR(PC)l; 25 DLR(SC)90; 3 BLD(AD)225 — Cited. Sections—45, 47, 67 and 73 Mode of proof of hand-writing or signature—It is well-known that the Evidence Act has provided for the following 4 modes for proving hand-writing or signature of a person in any document namely: (1.) By proof of the signature or handwriting of the person alleged to have signed or written the document by evidence vide section 67 of the Evidence Act. (2.) By the opinion of an expert who can examine and compare the handwriting or signature in a scientific process vide section 45 as the Evidence Act. (3.) By a witness who is acquainted with the handwriting or signature of the person by whom the same is supposed to be written and signed, vide section 47 of the Evidence Act. (4.) Also by comparison of the signature or handwriting of the person with his other admitted and proved handwriting on signature by the Court it self vide section 73 of the Act. In the instant case when it is the duty of the plaintiffs to prove the identity and genuineness of the signature of the petitioner in thealleged document, the plaintiffs may avail of any of the methods as enumerated above — He or they cannot be forced by the defendants to resort to any particular method of proving the alleged signature. Shree Dulal Benerfee alias Moni Vs. Shree Sharat Chandra Pal and another; 12BLD (HCD) 277 Sections—56, 78(6) and 85 Power of attorney authentic in foreign city—Power of attorney executed and authenticated by a Magistrate or Notary Public in a foreign country—Whether could be acted upon as a valid document in Bangladesh. If a notarial act is done in a foreign country by a foreign notary and there is reciprocal arrangement between Bangladesh and that foreign country, then by reference to section 14 of Notaries Ordinance and section 33of the Registration Act, those Notarial acts will be valid and the power of attorney admissible in Bangladesh. Nurunizessa and others Vs. Babar Ali Bepari and others; 1BLD (AD) 86 Section—64 Admissibility of newspaper report — Probative nature of such report — Although a newspaper is admissible in evidence without formal proof, yet the paper ipso facto is no proof of its contents — The newspaper cannot be treated as proof of the facts. Nurul Islam and others Vs. The State, 7BLD (HCD) 193 Ref. A.I.R. 1925 (Lahore) 299: A.I.R. 1961 (Pun) 215; AIR. 1951(SC)1376 — Cited. Section—57 Judicial Notice of a period of general dislocation — Momentous changes took place when Benches of the High Court Division were established outside the capital — the cases arising from Barisal were initially sent to the Jessore Bench and then after the establishment of the Barisal Bench, to Barisal — It was a period of general dislocation of which judicial notice should be taken. Mvi. Md. Keramat Ali and another Vs. Syed Munsur Ali and others; 11BLDAD97 Sections—64 and 65 Best evidence — The rule of evidence is that the best evidence which the case in its nature is susceptible should always be given — Primary evidence is the best evidence as it is that kind of proof which in the eye of law affords the greatest certainty of facts in question — Unless it is shown that the production of this evidence is out of the party’s power, no other proof of fact is generally admitted — Overall testimony to prove shortage of stay and stationery is inadmissible in evidence when documentary evidence to prove the same was available and purposely withheld. S.K. Abdul Majid Vs. The State; 7BLD (HCD) 413 Sections—65 and 66 Admissibility of certified copy of an application — Original called for from the custody of the person granting the copy bi the original not produced — In view of clauses (a) (c) of sections 65 and 66 of the Evidence Act the certified copy of the application is admissible in evidence. Indus Ali and others Vs. Abdul Jabbar Mia, 3BLD (HCD) 258 Section—65 Secondary evidence — Question of admissibility without formal proof — Though no objection was raised when the secondary evidence in the Photostat copy was produced, the party producing it was not exempt from explaining why its original was not produced — If the original is not available, the reason for non-availability must be given. Hazi Waziullah and others Vs. Additionial Deputy Commissionier, Noakhali and others; 9BLD (AD)135 Ref. 20 DLR (SC)205; — Cited. Section—65 Award in respect of a property — When cannot be considered — The original of the alleged award having not been filed in the Court the true copy of the alleged award cannot be considered. Chan Jun Talukder and another Vs. Ching Neshazy Magni and others, 9BLD (HCD)10 Sections—67 and 68 Presumption of genuineness of a registered kabala — In the absence of proof of its due execution a registered kabala by itself does not raise any presumption of its genuineness. Abdul Malek Sarkar Vs. Govt. of Bangladesh; 3BLD(HCD)1 70 Sections—67 and 68 Execution and attestation of a will — I-low is to be proved — Due execution of a will means not only that the testator executed it by putting his signature or affixing his mark but also it requires that the testator executed it in sound mind, fully knowing the nature and effect of his action — It must be proved that the testator had the testamentary capacity’ at the time he put his signature or thumb impression on the Will — The requirements of sections 67 and 68 of the Evidence Act must be fulfilled. Paresh Chandra Bhowmik Vs. Hiralal Nath and another, 4BLD (AD) 199 Sections—67 and 68 Proof of execution of a document — Whether Registrar’s endorsement is conclusive proof of execution — The certificate of a Registrar although raises a presumption as to the admission of execution by the executant yet such admission cannot be the evidence of due execution against third persons — The execution of a document is required to be proved in the manner provided by sections 67 and 68 of the Evidence Act. Abani Mohan Saha Vs. Assistant Custodian Vested Property and others; 7BLD (AD) 306 Section—73 Comparison of handwriting and signature by the Court — Court’s power to examine disputed signature is not restricted but the power should be exercised with great caution as an arbitrary exercise of the power may lead to miscarriage of justice Only in appropriate cases the Court may exercise its enabling power where the Court finds that the exercise of this power is necessary in the interest of justice. Syed Nurul Flossain and another Vs. Salema Khatun & another; 1BLD(HCD)474 Ref. 10 DLR 129; 49 C.W.N. 481; 26 C.W.N. 113; 64 C.W.N. 1067—Cited. Section—73 Comparison of handwriting by Court—Whether conclusion arrived at by comparison of hand writing or signature by the Courts below can be interfered with by the High Court Division in Second Appeal — Comparison of signature with admitted signature is a question of fact — High Court Division is not to interfere with the conclusion of the First Appellate Court on such question — Comparison of signature is a perfectly legal mode of proving hand-writing and, however inconclusive such proof may be, it cannot be considered as an error of law to base a conclusion on such proof alone — High Court in second appeal is not competent to set aside a finding based on such method — Code of Civil Procedure, l908(V of 1908) S. 100 (repealed). Abdul Matin Chowdhary Vs. Chapala Rani Sen and others; 5BLD (AD) 172 Section—73 Expert’s opinion—Whether it is better to have and come to a decision, particularly in case of L.T.L It is true that the Court itself can compare any signature or L.T.1. of any concerned person himself under section 73 of the Evidence Act and come to a decision, but it is better to have an expert’s opinion also, particularly in case of L.T.1. Sk. Abul Qasem and others Vs. Mayez liddin Mondal and others; 12BLD (HD) 161 Ref. 28 D.L.R. 123; A.I.R. 1928(P.C.)277 —CitedSection—74 Comparison of signature or hand writing — Whether- Court should compare the disputed signature with the admitted signature to come to a decision — reliance by the lower appellate Court on his own comparison of the disputed signatures disregarding and in preference to the positive evidence by an expert is highly unsatisfactory, dangerous and imprudent in a judgment of reversal and such judgment without proper reasons results in an error in the decision on merits occasioning a failure of justice — Code of Civil Procedure, 1908 (V of 1908), S. 115. SK. Anseruddin and others Vs. Usha Raid Ghose; 6BLD (HCD) 26 Ref. A.I.R. I 928(PC)277; A.I.R. I 954(SC) 320; A.I.R. 1979 (SC) 14; 5BLD (AD) 172 —Cited. Section—74 Whether plaint of a suit is a public document — Whether certified copy of the plaint is admissible in evidence — The plaint of a suit as soon as it is registered by a judicial officer within the meaning of clause (iii) of sub-section (1) of section 74 of the Evidence Act and as soon as it forms part of the record of the judicial officer it is a public document. Certified copy of such document is therefore admissible in evidence. Reazuddin and another Vs. Azimuddin and others; 7BLD (HCD)16 Ref. 19 DLR349; PLD I 967(Lahore) 1051; A.I.R. 1940 (Mad)768; 36 DLR(AD)248; 27 DLR 398: 29 DLR(SC)268; 92 IC. 184 — Cited. V Section—85 Authentication of power of attorney — A power of attorney duly authenticated raises the presumption that it was duly executed by the donor who has signed the instrument — The presumption unless rebutted, stands and the document can be admitted in evidence as a document executed by the persons alleged to have executed it, without any further proof — The defendant having failed to rebut the presumption plaintiff’s case stands. Md. Arshad Ali Vs. Abed Ali and others 4BLD(HCD)150 Ref. 30 DLR(SC)99; A.I.R. 1930 (Afl 524: A.I.R. 1971 (SC) 76; 1971(I) S.C. A. 136 —Cited. Section—85 Sections—91 and 92 Sections—91 and 92 Section—91 Kabalas under pre-emption under section 96 of the State Acquisition and Tenancy Act — recitals in documents are of out and out sale — no mention about any exchange or compromise. Section 91 of the Evidence Act will not bar any challenge as to the character of the disputed documents — But for that reason, the kabalas in question cannot be construed as instruments of exchange, simply because the ownership of the case land was not transferred for the ownership of any other land — State Acquisition and Tenancy Act, 1951 (XX VIII of 1951), S. 96. Abu Hassan (Minor) and others Vs. Basiruddin Ahmed and others; 11BLD (AD) 231, 12 BLD(AD)191 Section—92 Section—101 Onus of Proof — in a case of disputed parentage — The onus is not on the defendant to prove the factum of marriage — The onus was clearly upon the plaintiff to establish that there was no marriage when the defendant proved acknowledgement in his favour — All the Courts below in the facts of the case misplaced the onus on the defendant for proving the marriage of Monwar Begum with Amir Ali Mia whereas the settled principle of law is that the person who denies it will have to establish it — it was for the plaintiff to prove that there was no marriage with Manwara as alleged — As such the concurrent findings of fact is no finding in the eye of law. Khorshed A lain alias Shah Alam Vs. Amir Sultan All Hyder and another 5BLD (AD) 121 Ref. 3 M.I.A. 295; 8 M.I.A. 836 and 11 M.1.A, 94; 561.A. 201; 51 C,W.N. 98—Cited. Sections—101 and 102 Onus — Onus on whom lies in a suit for specific performance of a contract for sale of property where the signatures in the documents regarding the contract are admitted by the defendants pleading that the same were obtained from them by threat, intimidation and coercion — Law does not require that all facts alleged by the plaintiff shall be strictly proved, for burden of proof is often lightened by presumptions, admissions and estoppels — Primarily onus, of course lies in a civil proceeding, upon the plaintiff — In this case primary onus has been discharged satisfactorily by the plaintiff — Then onus has shifted upon the defendants to prove their particular fact that their signatures were extorted — This onus they failed to prove — Consequently, the evidence adduced by the plaintiffs as to execution of the documents stands. Jabed Ali Mondal and others Vs. Jamini Kanta Dey and others, 7BLD (AD) 156 Section—101 Section—101 Finding of fact—Finding of fact is ordinarily binding in a second appeal — Section 101 distinctly prohibits second appeal on a finding of fact based on legal evidence unless in the process of arriving at a finding of fact the Court has committed an error of law or a substantial error of procedure. Abdul Gaizi Khan Vs. Shainser Ali and others; 12BLD (HCD)90 Sections---101 and 102 Burden of proof — The onus of proving the genuineness of the signature and the questioned document is on the plaintiff. Shree Dulal Benergee alias Moni Vs. Shree Sha rat Chandra Pal and another. I2BLD (HCD) 277 Section—102 Onus of proof — Onus in a suit for his on whom declaring a heba-bil-ewaz deed in favour of the defendant was forged and without consideration. Initial onus was upon the plaintiff — Plaintiff having discharged that onus it shifted on to the defendant to prove that there was the intention for making the heba-bil-ewaz and that the consideration was paid — the onus of proving the formalities in connection with thedeed is upon the person who upholds the transaction. Montajur Rahman Vs. A.K.M. Mokbul Hossain and others; 5BLD (HCD) 18 Ref. 9 DLR (1957) Page 422 — Cited. Section—102 Burden of proof when special knowledge is involved — when the petitioner gives a list of dead persons and the opposite party does not controvert the same, the contents of the list are not proved — It is not the opposite party who maintains officially a list of dead voters — He does not have a special knowledge as to who are dead voters. Abul Hashern (Bulbul,) Vs.Mobarak Uddin Mahmud, 6BLD(HCD)250 Sections—102 and 103 Burden of proof — When both parties adduced evidence in order to set up their respective cases, the question of onus loses significance. Chinibash Pramanik Vs. Md. Nurul Hossain Mollah, 7BLD (AD) 103 Section—102 Onus Probandi — When onus is arbitrarily shifted and found not discharged — The plaintiff did not examine any independent witness in support of its case that the food supplied by the defendant’s canteen was not good — Trial Court arbitrarily shifted the onus on the defendant for proving its defence plea — The plaintiff therefore failed to bring its case home that he needed the tenanted premises for efficient management of the canteen — Premises Rent Control Ordinance, 1963 (XX of 1963), S. l8(l)(E). M/s. Channel Cinema Ltd. Vs. Chowdhury Golain Malek; 10BLD (AD,)82 Section—103 Burden of proof — Onus of proof that the left-out co-sharer has no subsisting right of pre-emption is upon the pre-emptor — State Acquisition and Tenancy Act, 1950(XXVIII of 1951), S. 96(2). Md. Abdul Jalil Vs. Durjan Ali alias Siddique Hossain and others, IBLD(’AD,) 241 Section—111 Burden of proof — Pardanashin Lady — Burden lies on the person who claims benefit under a deed executed by a pardanashin lady to establish that the deed was executed by the pardanashin lady after clearly understanding the nature of the transaction — The burden lies not only on the receipient of the deed, but also upon the transferee from the beneficiary. Mst. Rokeya KhatunVs. Aljan alias Aljan Bepari and others; 2BLD(4D)139 Ref. 52 l.A. 342; A.I.R. 1928 (PC) 303; A.I.R. 1940 (PC) 1,34 — Cited. Section—111 Burden of proof — Pardanashin lady — Protection given to pardanashin lady by the special rule of onus will extend to her legal heir — If the person upon whom the property of the pardanashin woman devolves by operation of law, and who, in the facts of the case, represents her can challenge the legality of disposition. Mst. Rokeya Khatun Vs. Aljan alias Alijan Bepari and others; 2BLD (AD) 139 Ref. 33 DLR (AD) 1 — Cited. - Section—111 Hiba-bil-Ewaj—Question of absurdity of the reason for Hiba-bil-Ewaj — Special rule on onus of proof devised to protect a pardanashin lady need not be understood to create disability in her right to deal with her property — When the final Court of fact is satisfied that the questioned document is beyond suspicion, no further examination of the document is called for. Jahura Khatun and another Vs. Md. Nurul Momen and others; 2BLD (HCD) 165Ref. 70 C.L.J. 402: A.LR. 1940 (PC) 134: 45 C.W.N. 259; 82 C.L.J. 26; 59 C.W.N. 147; 6 DLR 202; 33 DLR (AD) 1; A.I.R. 1919 (PC) 24; — Cited. Section—111 Pardanashin Lady — Discharge of special onus by the recipient of the document from a pardanashin lady — Without making any pleading that the executant was a pardanashin lady and she could not comprehend and understand the transaction there was no special onus upon the recipient of the kabala to prove that the document was a bonafide one and the executant understood and comprehended the transaction and that she had independent advice before she executed the kabala, Noad Chand Vs. Mst. Hjssain Banu and others; 6BLD (HCD) 173 Ref. A.I.R. 1956 (SC)593; A.LR. 1966 (SC) 635; 34 LA. 27: A.I.R. 1930(Sind) 25; 33DLR (AD) 1; 34 DLR(AD)266; A.I.R. 1930 (PC) 57; 28DLR(AD)57; A.I.R. 1920 (PC) 65 — Cited. Section—111 Pardanashin and illeterate lady — Execution of deed by her — Onus on whom that she had independent and disinterested advice at the time of execution and registration of the sale deed — Mere reading over and explaining of the contents of the deed will not meet the requirement of law — Onus is on the vendee to prove that independent and disinterested advice in the matter was received by her — The party relying on a document executed by an illeterate pardanashin village woman must satisfy the Court that not only the deed was read over and explained to her but also to prove that she understood the contents and that she got independent and disinterested advice in the matter. Rangbi Bewa Vs. Md. Abed Ali and others; 7BLD(HD)319 Ref. 26 C.W.N. 517(DB). Section—1 14(e) Public Notice — Presumption of service of such notice — Public notice for acquisition of property being an official act a presumption is available under the Evidence Act that it has been regularly performed unless the contrary is proved — Emergency Requisition of Property Act (XIII of 1948), S. 5(1). Government of Bangladesh, represented by the Deputy Commissioizer, Dhaka and others Vs. Basharatultah being dead his heirs and successors: Fade Karim and others; 1OBLD (AD)11O Section—114 Presumption of Judicial or official Acts—Whether illustration (C) of the section provides that all acts are presumed to have been rightly and regularly done. Illustration (C) of section 114 of the Evidence Act provides that all acts are presumed to have been rightly and regularly done — This presumption applies to judicial as well as to official acts — Where judicial or official act is shown to have been done, it is presumed to have been done rightly and regularly complying with the necessary requirements. Md. Akhtar Hossain Vs. The Governinent of the People’s Republic of Bangladesh and others; I2BLD (HCD,) 541 Section—114(e) (f) Service of notice u/s. 106 T.P. Act — Notice sent by registered post and returned with endorsement “refused” — Notice presumed to be served — Examination of peon to prove the endorsement is not necessary — Mere denial of the tenant that he did not receive the notice or that the notice was not tendered to him is not sufficient to rebut the presumption — General Clauses Act, 1 897 (X of 1897) Dr. Jainshed Bakht Vs. Md. Kainaluddin, 1BLD (HCD) 97Ref. A.I,R. 191 5(Cal)3 13; 39C.W.N. 934; 51C.W.N. 650; 52 C.W.N. 659; 6 DLR267; A.I.R. 1918 (PC) 102; A.I.R. 1958 (Cal) 251; 22 DLR 664; 17 DLR(WP)26—Cited. Section—114 Reserved Forest — Whether in the absence of notification under the Assam Forest Regulation or Forest Act nature of the forest land under the Forest Department as ‘reserved forest’ is affected — Even assuming that the defendant Forest Department did not acquire any title in the suit land of the forest as no subsequent notification required under section 17 of the Assam Forest Regulation VII of 1 891 or under section 20 of the Forest Act, 1927 was issued, even in that case, the possession of the Forest Department in the lands of the notification Ext. A is not denied or disputed and the long possession of the Forest Department is a fact — So under section 114(e) and (f) of the Evidence Act there is presumption that notification under section 17 of the Assam Forest Regulation was duly made -— Forest Department has got title and possession in the suit land or at least a better title and prior possession than thoe of the plaintiff—Assam Forest Regulation (VII of 1891). S. 17. Kanglu Khasia Vs. Divisional Forest Officer and others; 7BLD(HCD)96 Section—1 15 Estoppel — Plaintiff’s karsha right sold in auction — Defendants claiming kol-karsha right setting aside the auction sale under section 174(3) of B.T. Act impleading the plaintiff in the proceeding — Plaintiff is estopped from denying defendant’s kol-karsha. Sunil Kumar Biswas Vs. Mohammad Idris and others, 1BLD (AD)367 Section—115 Estoppel — Series of litigation’s between the parties ultimately concluded by a compromise decree — Defendant gave up his claim of Tk, 1000/- as a consideration of compromise — Subsequent suit which in effect is directed against the compromise is hit by the principle of estoppel. Abdul Mujib Chowdhury Vs. Syed Abdul Mutalib and others; 1BLD (HCD)467 No estoppel against Statute — Whether this rule of law can be invoked by one to takes advantage of his own fraud — The rule is attracted only when its invocation will defeat the public policy behind a Statute — If, in disregard of the obligation imposed by section 75A upon the landlord he has alienated his land he cannot subsequently raise an objection to nullify his own action — The plaintiff- appellant has filed the suit certaintly not for the benefit of the Government, nor is there any reason to suppose that the statutory provisions would be nullified if the declaration sought for is not granted — If he is allowed to succeed he would be enabled to take advantage of his own fraud. Sree Sudhir Chandra Saha and another Vs. Matiran Bewa, being dead her heirs Nazmul Rahrnan Sarker and others; 6BLD (AD) 182 Ref. A.I.R. l937 (PC)1 14; (1903)30 l.A. 114; (l964)I6DLR(SC)685 —Cited. Section—115 Right of Pre-emption — Whether barred by acquiescence and estoppel — When the pre-emptor negotiates the sale under pre-emption or the facts are such that his acquiescence can be safely concluded, the doctrine of estoppel comes into full play — His conduct will be a bar even though he files his application for pre-emption in a statutory right — State Acquisition and Tenancy Act, 1950(XXVIII of 195 1),S.96. Moulana Abdul Karim Vs. Nurfahan Begum and others; 6BLD (HCD) 125 Ref. A.I.R. 1968(SC) 933; PLD 196 l(SC)436(444); 22 DLR 449; A.I.R. 1947 (Oudh)81; A.I.R. 1951 (Nagpur) 451; AIR. 1950(Madhya Bharat)85; A.I.R. I 925( Lahore)57; A.I.R. 1928(P.C.)190— Cited. Section—115 Resignation from service — Employee of Biman Bangladesh Air Lines resigning with immediate effect allowed to resume his duties — Whether the employer in such a position waived its right to continue the services of the employee — When a permanent employee, as in the present case resigns with immediate effect the employer is required neither to accept nor to reject the resignation — The question of acceptance or refusal of resignation arises only when the employee gives a notice of resignation — Since the petitioner resigned with immediate effect, he has only to surrender his pay in lieu of notice period — But by allowing the employee to resume his duties from 4.8.87 the employer literally waived its right to discontinue his service — It is as if the employee has not taken any notice of the letter of resignation and thus caused the employee to believe that he was still in service — the employer was therefore estopped by its conduct from saying that the employee was no longer in service — Bangladesh Biman Corporation Employees (Service) Regulations, 1979, Peg. 53. M.A. Mannan Vs. Biman Bangladesh Air Lines, 9BLD(HCD)516 Section—115 Promissory Estoppel — Principle of When a party acts upon Government assurance, the latter is estopped from denying such position particularly when there is no formal contract executed between the parties and a right vests in him. There was acute shortage of sugar in the country and the government encouraged the importation of sugar under Wage Earner’s Scheme exempting so much of customs duty and sales tax leviable thereon as in excess of 50% and 10% respectively — The importer respondent imported sugar acting upon assurance of the Government — the subsequent notification dated 6. 11 .84 withdrawing confessional rate with retrospective effect can have no operation when a right has vested in the importer inasmuch as the respondent had acted upon assurance that the favourable terms mentioned in the notification dated 16.10.1984 will be applicable to him — He acted upon his assurance and now the Government cannot fall back upon it and say LriZ he will have to pay customs duty at the rate that prevailed on 16.11.1988, which reduced the exemption —- This is clearly a case of as the respondent had acted on the assurance given by the Government and a right vested in him could not be taken away. The Collector of Customs, Customs House, Chittagong and others Vs. Mr. A. .Hannan, 1OBLD(AD)216 Section—115 Estoppel — Bar of estoppel when not applicable — Once a candidate is declared Chairman by notification in the official Gazette he acquires a legal status and by his subsequent conduct, it cannot be said, he created an estoppel against statute itself. Hazrat Ali Vs. Election Commission and others; 10BLD (HCD)157 Section—115 Estoppel-Under the Retirement Rules, 1968, the word ‘competent authority’ has been defined as the authority competent to make appointment of such service — From the definition, it is clear that the competent authority to make appointments in Barisal Pourashava is the executive head, namely the Chairman. Since the appointment of the petitioners was made by the then Chairman of the Pourashava and since the petitioner joined their services on the basis of those appointment letters and rendered 12 years uninterrupted service their appointment cannot now be said to be made irregularly and, if any irregularity was there initially, it has been cured by lapse of time. Kanaklata Halder and others Vs. Barisal Pourashava and another 10BLD (HCD) 381 Section—116 Tenant’s estoppel — It is founded upon a contract — when a person enters into possession of immovable property as a tenant of another person then neither he nor any body claiming though him shall be permitted during continuance of the tenancy to deny the land-lord’s title however defective that title might be. Hajee Abdus Sattar Vs. Mahiuddin and other. 6BLD (AD) 224 Ref: 49 l.A. 299; A.LR. 1933 (PC)29 — Cited. Section—116 Estoppel — Estoppel against a tenant — A tenant during his possession is estopped from denying that the landlord who let him into possession had no title at the time entry — The estoppel is however restricted to denial of the title at the commencement of the tenancy — It is open to the tenant even without surrendering possession to show that since the date of commencement of tenancy, the title of the landlord came to an end or that he has been evicted by the paramount title holder — The defendant is estopped from questioning or denying the exclusive title of the plaintiff landlord who let him into the possession of the suit property at the beginning Of the tenancy. Fazal Kariin Vs. Sree Dulal Kanti Baidya and another; 6BLD (HD) 1O5 Ref: A.I.R. 1913 (PC) 96; AIR. l935(PC)59; A.I.R. 1966 (SC) 629;— Cited. Section—145 Admissibility of previous statement — A party’s previous statement regarding a fact in issue is relevant and can be used against him if he has not appeared in the witness box at all — Even if the party appearing in the witness box is not confronted with his contrary previous admission, his previous admission, if duly proved, is admissible. Sultan Ahmed and others Vs. Mohammad Islam and others; 4BLD (HCD) 183 Ref. A.I.R. I 946(Lahore) 65(FB); A.I.R. 1957 (Allahabad) I (F.B); A.I.R. 1966(SC) 402—Cited. Section—145 Recital in kabala — Question of admissibility — Plaintiff is not an executrix the kabala, she is a mere recipient of it — The recital of kabala per se shall not go into evidence unless the person who has made such recital raises any objection there for. Feroja Khatoon Vs. Brajalal Nath and others; 10 BLD (HCD) 218. Section 3— Relationship of the witnesses with a party cannot be the sole ground of disbelieving their evidence unless contradiction and inherent infirmity are found in their evidence. Bachu Miah vs Samad Miah and others 50 DLR 564. Section 3— Partisan evidence is no doubt suspect, but cannot be discarded without finding any inherent infirmity and/or contradictions therein making the same unworthy of credence. In the context of prevailing deteriorating law and order situation in the society where open threat is given to the witnesses not to depose in support of the prosecution case the difficulty of the prosecution to bring independent witnesses, and the rising tendency of witnesses giving testimony in the Court to favour the accused giving different versions of the occurrence from the one made to the investigation officer at the time of investigation, for the above reasons, should be considered before finding fault with the prosecution for non-production of independent witnesses and relying on the evidence of the witnesses declared hostile by the prosecution without properly evaluating whatever evidence is available on record with a critical eye in the context of the respective cases of the parties. Dulal Miah @ Dulal @ Nurun Nabi vs Ruhul Amin and others 50 DLR 618 Section 3— Recognition by torch and hurricane at dead of night is doubtful. Abu Bakker and others vs State 49 DLR 480. Section 3— A witness has a tendency to exaggerate, embroider and also to implicate falsely some other person in addition to the real offender. The Court is to scan the evidence so as to come to a decision as to which part is acceptable and only in case of impossibility to separate the truth from falsehood, the Court will be justified in rejecting the evidence in toto. Masum and others vs State 49 DLR 349. Section 3— Evidence adduced by the prosecution being of a circumstantial nature and there being a missing link in the chain of circumstances, the prosecution failed to prove the guilt of the appellants beyond reasonable doubt. Nuru Miah and another vs State 49 DLR 97 Section 3— In the absence of the practice of registration of birth in the official register kept by any public authority, one cannot really be sure of the date of birth of any particular person. Ultimately, it falls on the court to determine the age of the victim girl based on the impression received, by her behaviour and appearance when brought before this court. Nurunnahar Khatun vs State 46 DLR 112. Section 3— Long delay in examining the material witnesses casts a doubt on the whole prosecution case. Syed Nazakat Hossain alias Ujjal vs State 48 DLR 139. Section 3— Circumstantial evidence —If the circumstances are not proved beyond all reasonable doubt by reliable and sufficient evidence and if at all proved but the same cumulatively do not lead to the inevitable conclusion or hypothesis of guilt of the accused’s alone but to any other reasonable hypothesis compatible with the innocence of the accused then it will be a case of no evidence and the accused should be given benefit of doubt. Bakul and others vs State 47 DLR 486. Section 3— Circumstantial evidence must be so strong as to eliminate the possibility of innocence of the accused person. State vs Balai Chandra Sarker 47 DLR 467. Section 3— Section 3— A witness for the prosecution does not become partisan per se nor an eye-witness can be disregarded merely because he has come to support the prosecution party. It was necessary to consider the whole evidence and then to assess the worth of the witnesses as a whole. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Section 3— Benefit of doubt to the accused would be available provided there is supportive evidence on record. For creating doubt or granting benefit of doubt, the evidence is to be such which may lead to such doubt. The law would fail to protect the community, if fanciful possibilities are admitted, thus, deflecting the course of justice. Al-Amin and 5 others vs State 51 DLR 154. Sections 3, 5 & 8— Ordinarily an accused has no obligation to account for the death for which he was placed on trial, but the murder having taken place while the accused was living with his deceased wife in the same house; he was under an obligation to explain how his wife had met with her death. Abul Kalam Mollah vs State 51 DLR 544 Sections 3 & 30— Confession of co-accused—The confession of an accused is no evidence against the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 3 & 30— It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found against him. Abul Hossain and others vs State 46 DLR 77. Sections 3 & 30— Since the confessional statement is not required to be taken on oath and taken in presence of a co-accused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused.. Mojibar vs State 51 DLR 507 Section 5— The Court ought not to have rejected the evidence of witnesses merely on the ground that they were not disinterested witnesses when their examination-in-chief could not be shaken in cross-examination by the defence. Samad Sikdar @ Somed Sikder vs State 50 DLR (AD) 24 Section 5— In the instant case where bitter enmity between the parties is admitted, some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. Abdul Kader alias Kadu and others vs State 49 DLR 577 Section 5— Where bitter enmity between the parties is admitted some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. Serajul Islam and others vs State 48 DLR 165. Section 5— Courts must seek corroboration before acting upon interested witnesses in a criminal trial. It is the Court's solemn duty to assess the evidence legally not only to secure conviction but also to record acquittal. State vs Khalilur Rahman 48 DLR 184. Section 5— Section 5— An unreasonable delay in lodging the FIR inevitably gives rise to suspicion as to the trustworthiness or otherwise of the prosecution version of the case. State vs Tajul Islam 48 DLR 305. Section 5— When the alleged eye¬witnesses recognised the miscreants and disclosed their names to the informant before lodging the FIR and still then the informant does not mention their names in the FIR, the evidence of such witnesses must be kept out of consideration. State vs Tajul Islam 48 DLR 305. Section 5— If there are admixture of falsehood so that it becomes impossible for the courts to separate the grains of truth from mass of chaff, then such evidence of a witness must be rejected as a whole. Bazlu Talukder and others vs Deputy Commissioner Madaripur 48 DLR 509. Section 5— When the witness has animus against the accused her evidence cannot be relied on except with strong corroborative evidence. State vs Raisuddin and others 48 DLR 517. Section 8— Mere abscondence for some time without any guilty mind cannot be an incriminating circumstance against the accused to be relied upon for basing his conviction. Shahjahan vs State 46 DLR 575. Section 8— In a case where bitter enmity is admitted between the parties, it is required as a rule of prudence that there should be some corroboration of the evidence of the interested witness. Amir Hossain Dhali and other vs State 49 DLR 163 Section 8— As the condemned-accused absconded from the very beginning of the case, it appears that the learned Sessions Judge has been influenced for the same in awarding the capital sentence against him which is against the decided principle of law. From the conduct of a person for absconding after commission of the offence may sometimes be evidence to show that he was concerned with the offence. But it is usually a very small item in the evidence on which a conviction can be based. State vs Balai Chandra Sarker 47 DLR 467. Section 8—Motive is not imperative in every case of murder and even if motive is not established that does not throw the prosecution case overboard. Ashraf Ali Munshi vs State 48 DLR 590. Section 8— Abscondence—Though the fact that the accused absconded soon after the crime is not an evidence itself but it may lend weight to other evidence. Ashraf Ali Munshi vs State 48 DLR 590. Section 9— Long abscondence and non-submission to the process of the court speaks a volume against the accused persons and clearly suggest their involvement in the crime. Abscondence of the accused persons furnished corroboration of the prosecution case and evidence. Al-Amin and 5 others vs State 51 DLR 154 Section 9— The non-holding of the Test Identification Parade cannot affect the identification of the accused Shamim Hossain by the victims at the time of trial and the statement made by the witnesses are the legal and substantive evidence in the eye of law. Al-Amin and 5 others vs State 51 DLR 154 Section 24— Since the confessing prisoner neither filed any petition from jail nor directly filed any petition in Court nor made any oral allegation retracting from the confession his last moment retraction cannot be entertained. State vs Kamal Ahmed 49 DLR 381. Section 24— Extra-judicial confes¬sions are not usually considered with favour but it does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support his statement should not be believed. Syed Ahmed vs Abdul Khaleque and others 51 DLR 43. Section 30— There being no independent evidence except the confessional statement of appellant Farook Mahajan against the other accused appellants. The trial Court was wrong in finding all the appellants guilty. A retracted confession; like the one which is not retracted, may form the sole basis of conviction of the maker if the court believes it to be voluntary and true. But as against the co-accused, the evidentiary value of a retracted is practically nil and in the absence of strong independent evidence, it is totally useless. Faruque Mahajan and 4 (four) others vs State 49 DLR 47 Section 30— Confessional statement of one accused cannot be used as evidence against another co-accused unless there is any independent corroboration. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407 Section 30— The evidentiary value of a retracted confession is practically nil in the absence of strong independent evidence. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407 Section 30— The confession of a co-accused may be used only to lend assurance to other evidence on recorded in support of the guilt of the accused but the same cannot be used as a substantive evidence. Moslemuddin and another vs State 48 DLR 588. Section 30— No statement that contains self-exculpatory matter can amount to confessional statement if the exculpatory statement is of some fact which if proved would negative the offence confessed. The statement of accused Bachchu in his confessional statement as quoted are the admission and not confession as confession involved a voluntary acknowledgment of guilt. From the admission of accused Bachchu it cannot be said that he was aware that Khairul would be murdered by the other accused. He, therefore, cannot be said to have abetted that offence of murder. State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355 Section 30—If confession falls short of plenary acknowledgment of guilt it would not be a confession even though the statement contained some incriminating fact. J abed Ali (Md) alias Jabed Ali and others vs State 51 DLR 397 Sections 30 & 3—Confession of co-accused—The confession of an accused is no evidence agianst the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 30 & 3—It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found agianst him. Abul Hossain and others vs State 46 DLR 77. Sections 30 & 3—Since the confessional statement is not required to be taken on oath and taken in presence of a co-accused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused. Mojibar vs State 51 DLR 507. Section 33—When the concerned witness could not be produced in the dock for further cross-examination for the fault of the accused it cannot be said that the evidence of the witness is inadmissible. Bakul and others vs State 47 DLR 486. Section 45—The High Court Division rightly found that it was unsafe to convict the accused persons on the uncorroborated opinion of handwriting and fingerprint expert. State vs Raihan Ali Khandker and others 50 DLR (AD) 23. Section 45—The Court was not justified in convicting the accused without examination and comparison of the disputed signature on the back of the cheque by handwriting expert with his specimen signatures. Khadem Ali Akand (Md) vs State 49 DLR 441. Sections 45 & 73—The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. Sections 57 & 60—The Appellate Division will set no example before the Courts to make reference to booklets of unknown origin. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Sections 73 & 45—The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. Section 80—Non-examination of the Magistrate who conducted the TI parade renders the memorandum drawn by him inadmissible as it is not a judicial proceeding and that cannot be presumed genuine unless proved by the evidence. Mizanur Rahman (Md) vs State 49 DLR 83 Section 80—It is not always necessary that the Magistrate who recorded the confessional statement should be produced in Court as a witness. Section 80 provides that even without production of the Magistrate such statement may be taken into consideration and presumed to be genuine. Abul Khayer and 3 others vs State 46 DLR 212. Section 80—It dispenses with the necessity of a formal proof of a confession duly recorded by a Magistrate in accordance with the provisions of section 164 of the Code of Criminal Procedure. In such a case the examination of the recording Magistrate is not imperative. State vs Tajul Islam 48 DLR 305. Section 80—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466 Section 114(g)— Non-examination of independent witnesses, especially some of the close neighbours calls for a presumption against the prosecution. This view finds support from the case reported in 25 DLR 398. Kawsarun Nessa and another vs State 48 DLR 196. Sections 101 & 106— Since no special knowledge of the relevant fact as to committing of the crime could be attributed to the accused the provisions of sections 101 & 106 of the Evidence Act have no applicability in the case. Kawsarun Nessa and another vs State DLR 196. Sections 101 & 106— Section 106 does not relieve the prosecution of the duty to discharge its onus of proving a case as has been imposed by section 101 of the Evidence Act. Shahjahan Talukder @ Manik and others vs State 47 DLR 198. Section 114(g)— The principle laid down in the said case along with the provision of 114(g) of the Evidence Act is applicable in the present case where the prosecution suffers for non-examination of dis-interested and independent witnesses as though the occurrence is alleged to have taken place in the broad day light on the busy pathway. Alamgir Hossain (Md) alias Alamgir Hossain and another vs State 49 DLR 590. Section 114(g)— Withholding of charge-sheet witnesses—In a case where there is no eye-witness or circumstantial evidence, it is essential that next-door neighbours or those living near the place of occurrence be examined. Momin alias Md Mominul Huq vs State 48 DLR 282. Section 118— All persons, who can understand the questions put to them or can give rational answers to those questions are competent to testify before a court. It is not imperative for the court to subject a child witness to preliminary examination before reception of his evidence. The court may satisfy itself during the progress of the evidence in court that the witness is capable of understanding the questions put to him and of giving intelligible reply. In case of such satisfaction, the evidence becomes admissible. It is, desirable that the court should make an endorsement about its satisfaction. Seraj Miah vs State 49 DLR 192. Section 118—Though a child witness, PW 2 received injuries in the hands of the appellants when his father was done to death and the witness having testified about the factum of the occurrence and the same having not been shaken in cross-examination, the witness, though a child, should be believed in the facts of the case. Forkan alias Farhad and another vs State 47 DLR (AD) 149. Section 134—In order to convict an accused solely on the basis of a solitary witness like the police officer or the person who made the search and seizure, the Judge must ensure that such witness is disinterested and the evidence is unimpeachable and the other witnesses to the search who are alleged to have resiled from their previous stand are unworthy of credit. Talebur Rahman alias Taleb and 2 others vs State 49 DLR 167 Section 134—Even on the basis of a single witness a conviction can be maintained but such a witness must be fully reliable, above reproach and not shaken. Ashok Kumar Saha vs State 46 DLR 229. Section 134—Law does not require any particular number of witnesses to prove a case and conviction may be well-founded even on the testimony of a solitary witness provided his credibility is not shaken. Al-Amin and 5 others vs State 51 DLR 154 Section 134—It is true that under section 134 of the evidence Act conviction can be based on the Evidence of a single witness but the evidence of that witness must be of unimpeachable character. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466 Section 145—Statements made under section 161 CrPC are not substantive evidence. Such statements can only be utilized under section 162 CrPC to contradict the witness in the manner provided by section 145 of the Evidence Act. Abdus Subhan vs State 46 DLR 387. Sections 145 & 155—The trial Court illegally referred to and considered the statements of witnesses recorded under section 161 Criminal Procedure Code, which could only be used to contradict or corroborate the witness. Abu Bakker and others vs State 49 DLR 480. Sections 145 & 155—Statement of a person recorded under section 164 CrPC is not a substantive piece of evidence of the fact stated therein. Such statements recorded by a Magistrate under section 164 CrPC can only be used for contradicting the maker of it under sections 145 and 155 of the Evidence Act or for the purpose of corroborating him under section 157 of the Act. Seraj Miah vs State 49 DLR 192 Section 146—Mere relationship of the witness should not be a ground for discarding his evidence unless he is found to be biased and lying. Sarwardy Kamal and others vs State 48 DLR 61. Section 154—Even if there is some discrepancy in the evidence of a witness with regard to some part of the case, for that his entire evidence on the remaining part should not be discarded. Abdus Sukur Mia vs State 48 DLR 228. Sections 154 & 142—Court may in its discretion permit a party to put questions to its witness which are usually put in cross-examination by the adverse party. Babul vs State 50 DLR 490 Sections 154 & 155—The evidence of a witness is not to be rejected either in whole or in part simply because of being cross-examined by the party calling him, but the whole of the evidence as far as it affects both parties, favourable or unfavourable, must be taken into account and assessed like any other evidence. Amir Hossain Dhali and others vs State 49 DLR 163 Section 156—The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of a victim of sex crime alone to convict an accused where her testimony inspires confidence and is found to be reliable. One must remain alive to the fact that in a case of rape no self respecting woman especially a college girl would come forward in a court just to make a humiliating statement against her honour and dignity such as involved in the commission of rape upon her. The court must not cling to fossil formula and insist a corroborative testimony, even if, taken as a whole the case spoken to by victims of sex crimes strikes a judicial mind as probable Judicial response to Human Rights cannot be blunted by legal bigotry. Al-Amin and 5 others vs State 51 DLR 154. Section 3— Relationship of the witnesses with a party cannot be the sole ground of disbelieving their evidence unless contradiction and inherent infirmity are found in their evidence. Bachu Miah vs Samad Miah and others 50 DLR 564. Section 3— Partisan evidence is no doubt suspect, but cannot be discarded without finding any inherent infirmity and/or contradictions therein making the same unworthy of credence. In the context of prevailing deteriorating law and order situation in the society where open threat is given to the witnesses not to depose in support of the prosecution case the difficulty of the prosecution to bring independent witnesses, and the rising tendency of witnesses giving testimony in the Court to favour the accused giving different versions of the occurrence from the one made to the investigation officer at the time of investigation, for the above reasons, should be considered before finding fault with the prosecution for non-production of independent witnesses and relying on the evidence of the witnesses declared hostile by the prosecution without properly evaluating whatever evidence is available on record with a critical eye in the context of the respective cases of the parties. Dulal Miah @ Dulal @ Nurun Nabi vs Ruhul Amin and others 50 DLR 618 Section 3— Recognition by torch and hurricane at dead of night is doubtful. Abu Bakker and others vs State 49 DLR 480. Section 3— A witness has a tendency to exaggerate, embroider and also to implicate falsely some other person in addition to the real offender. The Court is to scan the evidence so as to come to a decision as to which part is acceptable and only in case of impossibility to separate the truth from falsehood, the Court will be justified in rejecting the evidence in toto. Masum and others vs State 49 DLR 349. Section 3— Evidence adduced by the prosecution being of a circumstantial nature and there being a missing link in the chain of circumstances, the prosecution failed to prove the guilt of the appellants beyond reasonable doubt. Nuru Miah and another vs State 49 DLR 97 Section 3— In the absence of the practice of registration of birth in the official register kept by any public authority, one cannot really be sure of the date of birth of any particular person. Ultimately, it falls on the court to determine the age of the victim girl based on the impression received, by her behaviour and appearance when brought before this court. Nurunnahar Khatun vs State 46 DLR 112. Section 3— Long delay in examining the material witnesses casts a doubt on the whole prosecution case. Syed Nazakat Hossain alias Ujjal vs State 48 DLR 139. Section 3— Circumstantial evidence —If the circumstances are not proved beyond all reasonable doubt by reliable and sufficient evidence and if at all proved but the same cumulatively do not lead to the inevitable conclusion or hypothesis of guilt of the accused’s alone but to any other reasonable hypothesis compatible with the innocence of the accused then it will be a case of no evidence and the accused should be given benefit of doubt. Bakul and others vs State 47 DLR 486. Section 3— Circumstantial evidence must be so strong as to eliminate the possibility of innocence of the accused person. State vs Balai Chandra Sarker 47 DLR 467. Section 3— Section 3— A witness for the prosecution does not become partisan per se nor an eye-witness can be disregarded merely because he has come to support the prosecution party. It was necessary to consider the whole evidence and then to assess the worth of the witnesses as a whole. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Section 3— Benefit of doubt to the accused would be available provided there is supportive evidence on record. For creating doubt or granting benefit of doubt, the evidence is to be such which may lead to such doubt. The law would fail to protect the community, if fanciful possibilities are admitted, thus, deflecting the course of justice. Al-Amin and 5 others vs State 51 DLR 154. Sections 3, 5 & 8— Ordinarily an accused has no obligation to account for the death for which he was placed on trial, but the murder having taken place while the accused was living with his deceased wife in the same house; he was under an obligation to explain how his wife had met with her death. Abul Kalam Mollah vs State 51 DLR 544 Sections 3 & 30— Confession of co-accused—The confession of an accused is no evidence against the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 3 & 30— It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found against him. Abul Hossain and others vs State 46 DLR 77. Sections 3 & 30— Since the confessional statement is not required to be taken on oath and taken in presence of a co-accused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused.. Mojibar vs State 51 DLR 507 Section 5— The Court ought not to have rejected the evidence of witnesses merely on the ground that they were not disinterested witnesses when their examination-in-chief could not be shaken in cross-examination by the defence. Samad Sikdar @ Somed Sikder vs State 50 DLR (AD) 24 Section 5— In the instant case where bitter enmity between the parties is admitted, some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. Abdul Kader alias Kadu and others vs State 49 DLR 577 Section 5— Where bitter enmity between the parties is admitted some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. Serajul Islam and others vs State 48 DLR 165. Section 5— Courts must seek corroboration before acting upon interested witnesses in a criminal trial. It is the Court's solemn duty to assess the evidence legally not only to secure conviction but also to record acquittal. State vs Khalilur Rahman 48 DLR 184. Section 5— Section 5— An unreasonable delay in lodging the FIR inevitably gives rise to suspicion as to the trustworthiness or otherwise of the prosecution version of the case. State vs Tajul Islam 48 DLR 305. Section 5— When the alleged eye¬witnesses recognised the miscreants and disclosed their names to the informant before lodging the FIR and still then the informant does not mention their names in the FIR, the evidence of such witnesses must be kept out of consideration. State vs Tajul Islam 48 DLR 305. Section 5— If there are admixture of falsehood so that it becomes impossible for the courts to separate the grains of truth from mass of chaff, then such evidence of a witness must be rejected as a whole. Bazlu Talukder and others vs Deputy Commissioner Madaripur 48 DLR 509. Section 5— When the witness has animus against the accused her evidence cannot be relied on except with strong corroborative evidence. State vs Raisuddin and others 48 DLR 517. Section 8— Mere abscondence for some time without any guilty mind cannot be an incriminating circumstance against the accused to be relied upon for basing his conviction. Shahjahan vs State 46 DLR 575. Section 8— In a case where bitter enmity is admitted between the parties, it is required as a rule of prudence that there should be some corroboration of the evidence of the interested witness. Amir Hossain Dhali and other vs State 49 DLR 163 Section 8— As the condemned-accused absconded from the very beginning of the case, it appears that the learned Sessions Judge has been influenced for the same in awarding the capital sentence against him which is against the decided principle of law. From the conduct of a person for absconding after commission of the offence may sometimes be evidence to show that he was concerned with the offence. But it is usually a very small item in the evidence on which a conviction can be based. State vs Balai Chandra Sarker 47 DLR 467. Section 8—Motive is not imperative in every case of murder and even if motive is not established that does not throw the prosecution case overboard. Ashraf Ali Munshi vs State 48 DLR 590. Section 8— Abscondence—Though the fact that the accused absconded soon after the crime is not an evidence itself but it may lend weight to other evidence. Ashraf Ali Munshi vs State 48 DLR 590. Section 9— Long abscondence and non-submission to the process of the court speaks a volume against the accused persons and clearly suggest their involvement in the crime. Abscondence of the accused persons furnished corroboration of the prosecution case and evidence. Al-Amin and 5 others vs State 51 DLR 154 Section 9— The non-holding of the Test Identification Parade cannot affect the identification of the accused Shamim Hossain by the victims at the time of trial and the statement made by the witnesses are the legal and substantive evidence in the eye of law. Al-Amin and 5 others vs State 51 DLR 154 Section 24— Since the confessing prisoner neither filed any petition from jail nor directly filed any petition in Court nor made any oral allegation retracting from the confession his last moment retraction cannot be entertained. State vs Kamal Ahmed 49 DLR 381. Section 24— Extra-judicial confes¬sions are not usually considered with favour but it does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support his statement should not be believed. Syed Ahmed vs Abdul Khaleque and others 51 DLR 43. Section 30— There being no independent evidence except the confessional statement of appellant Farook Mahajan against the other accused appellants. The trial Court was wrong in finding all the appellants guilty. A retracted confession; like the one which is not retracted, may form the sole basis of conviction of the maker if the court believes it to be voluntary and true. But as against the co-accused, the evidentiary value of a retracted is practically nil and in the absence of strong independent evidence, it is totally useless. Faruque Mahajan and 4 (four) others vs State 49 DLR 47 Section 30— Confessional statement of one accused cannot be used as evidence against another co-accused unless there is any independent corroboration. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407 Section 30— The evidentiary value of a retracted confession is practically nil in the absence of strong independent evidence. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407 Section 30— The confession of a co-accused may be used only to lend assurance to other evidence on recorded in support of the guilt of the accused but the same cannot be used as a substantive evidence. Moslemuddin and another vs State 48 DLR 588. Section 30— No statement that contains self-exculpatory matter can amount to confessional statement if the exculpatory statement is of some fact which if proved would negative the offence confessed. The statement of accused Bachchu in his confessional statement as quoted are the admission and not confession as confession involved a voluntary acknowledgment of guilt. From the admission of accused Bachchu it cannot be said that he was aware that Khairul would be murdered by the other accused. He, therefore, cannot be said to have abetted that offence of murder. State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355 Section 30—If confession falls short of plenary acknowledgment of guilt it would not be a confession even though the statement contained some incriminating fact. J abed Ali (Md) alias Jabed Ali and others vs State 51 DLR 397 Sections 30 & 3—Confession of co-accused—The confession of an accused is no evidence agianst the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 30 & 3—It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found agianst him. Abul Hossain and others vs State 46 DLR 77. Sections 30 & 3—Since the confessional statement is not required to be taken on oath and taken in presence of a co-accused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused. Mojibar vs State 51 DLR 507. Section 33—When the concerned witness could not be produced in the dock for further cross-examination for the fault of the accused it cannot be said that the evidence of the witness is inadmissible. Bakul and others vs State 47 DLR 486. Section 45—The High Court Division rightly found that it was unsafe to convict the accused persons on the uncorroborated opinion of handwriting and fingerprint expert. State vs Raihan Ali Khandker and others 50 DLR (AD) 23. Section 45—The Court was not justified in convicting the accused without examination and comparison of the disputed signature on the back of the cheque by handwriting expert with his specimen signatures. Khadem Ali Akand (Md) vs State 49 DLR 441. Sections 45 & 73—The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. Sections 57 & 60—The Appellate Division will set no example before the Courts to make reference to booklets of unknown origin. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Sections 73 & 45—The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. Section 80—Non-examination of the Magistrate who conducted the TI parade renders the memorandum drawn by him inadmissible as it is not a judicial proceeding and that cannot be presumed genuine unless proved by the evidence. Mizanur Rahman (Md) vs State 49 DLR 83 Section 80—It is not always necessary that the Magistrate who recorded the confessional statement should be produced in Court as a witness. Section 80 provides that even without production of the Magistrate such statement may be taken into consideration and presumed to be genuine. Abul Khayer and 3 others vs State 46 DLR 212. Section 80—It dispenses with the necessity of a formal proof of a confession duly recorded by a Magistrate in accordance with the provisions of section 164 of the Code of Criminal Procedure. In such a case the examination of the recording Magistrate is not imperative. State vs Tajul Islam 48 DLR 305. Section 80—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466 Section 114(g)— Non-examination of independent witnesses, especially some of the close neighbours calls for a presumption against the prosecution. This view finds support from the case reported in 25 DLR 398. Kawsarun Nessa and another vs State 48 DLR 196. Sections 101 & 106— Since no special knowledge of the relevant fact as to committing of the crime could be attributed to the accused the provisions of sections 101 & 106 of the Evidence Act have no applicability in the case. Kawsarun Nessa and another vs State DLR 196. Sections 101 & 106— Section 106 does not relieve the prosecution of the duty to discharge its onus of proving a case as has been imposed by section 101 of the Evidence Act. Shahjahan Talukder @ Manik and others vs State 47 DLR 198. Section 114(g)— The principle laid down in the said case along with the provision of 114(g) of the Evidence Act is applicable in the present case where the prosecution suffers for non-examination of dis-interested and independent witnesses as though the occurrence is alleged to have taken place in the broad day light on the busy pathway. Alamgir Hossain (Md) alias Alamgir Hossain and another vs State 49 DLR 590. Section 114(g)— Withholding of charge-sheet witnesses—In a case where there is no eye-witness or circumstantial evidence, it is essential that next-door neighbours or those living near the place of occurrence be examined. Momin alias Md Mominul Huq vs State 48 DLR 282. Section 118— All persons, who can understand the questions put to them or can give rational answers to those questions are competent to testify before a court. It is not imperative for the court to subject a child witness to preliminary examination before reception of his evidence. The court may satisfy itself during the progress of the evidence in court that the witness is capable of understanding the questions put to him and of giving intelligible reply. In case of such satisfaction, the evidence becomes admissible. It is, desirable that the court should make an endorsement about its satisfaction. Seraj Miah vs State 49 DLR 192. Section 118—Though a child witness, PW 2 received injuries in the hands of the appellants when his father was done to death and the witness having testified about the factum of the occurrence and the same having not been shaken in cross-examination, the witness, though a child, should be believed in the facts of the case. Forkan alias Farhad and another vs State 47 DLR (AD) 149. Section 134—In order to convict an accused solely on the basis of a solitary witness like the police officer or the person who made the search and seizure, the Judge must ensure that such witness is disinterested and the evidence is unimpeachable and the other witnesses to the search who are alleged to have resiled from their previous stand are unworthy of credit. Talebur Rahman alias Taleb and 2 others vs State 49 DLR 167 Section 134—Even on the basis of a single witness a conviction can be maintained but such a witness must be fully reliable, above reproach and not shaken. Ashok Kumar Saha vs State 46 DLR 229. Section 134—Law does not require any particular number of witnesses to prove a case and conviction may be well-founded even on the testimony of a solitary witness provided his credibility is not shaken. Al-Amin and 5 others vs State 51 DLR 154 Section 134—It is true that under section 134 of the evidence Act conviction can be based on the Evidence of a single witness but the evidence of that witness must be of unimpeachable character. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466 Section 145—Statements made under section 161 CrPC are not substantive evidence. Such statements can only be utilized under section 162 CrPC to contradict the witness in the manner provided by section 145 of the Evidence Act. Abdus Subhan vs State 46 DLR 387. Sections 145 & 155—The trial Court illegally referred to and considered the statements of witnesses recorded under section 161 Criminal Procedure Code, which could only be used to contradict or corroborate the witness. Abu Bakker and others vs State 49 DLR 480. Sections 145 & 155—Statement of a person recorded under section 164 CrPC is not a substantive piece of evidence of the fact stated therein. Such statements recorded by a Magistrate under section 164 CrPC can only be used for contradicting the maker of it under sections 145 and 155 of the Evidence Act or for the purpose of corroborating him under section 157 of the Act. Seraj Miah vs State 49 DLR 192 Section 146—Mere relationship of the witness should not be a ground for discarding his evidence unless he is found to be biased and lying. Sarwardy Kamal and others vs State 48 DLR 61. Section 154—Even if there is some discrepancy in the evidence of a witness with regard to some part of the case, for that his entire evidence on the remaining part should not be discarded. Abdus Sukur Mia vs State 48 DLR 228. Sections 154 & 142—Court may in its discretion permit a party to put questions to its witness which are usually put in cross-examination by the adverse party. Babul vs State 50 DLR 490 Sections 154 & 155—The evidence of a witness is not to be rejected either in whole or in part simply because of being cross-examined by the party calling him, but the whole of the evidence as far as it affects both parties, favourable or unfavourable, must be taken into account and assessed like any other evidence. Amir Hossain Dhali and others vs State 49 DLR 163 Section 156—The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of a victim of sex crime alone to convict an accused where her testimony inspires confidence and is found to be reliable. One must remain alive to the fact that in a case of rape no self respecting woman especially a college girl would come forward in a court just to make a humiliating statement against her honour and dignity such as involved in the commission of rape upon her. The court must not cling to fossil formula and insist a corroborative testimony, even if, taken as a whole the case spoken to by victims of sex crimes strikes a judicial mind as probable Judicial response to Human Rights cannot be blunted by legal bigotry. Al-Amin and 5 others vs State 51 DLR 154. Section 33— Use of evidence recorded by Magistrate of Marine Court by Admiralty Court- Whether permissible— The evidence of the witnesses recorded by the Magistrate of the Marine Court cannot be used by the Admiralty Court for determining the amount of compensation. Bangladesh Inland Water Transport Corporation Vs. Al-Falah Shipping Lines Ltd. and others. 3, MLR (1998) (AD) 59. Section 65— Secondary Evidence-When admissible— When the original is lost or destroyed the copy thereof as secondary evidence is admissible under section 65 of the Evidence Act. Abdul Khaleque Mollah Vs. Mr. A.B.M. Zakaria & another. 3, MLR (1998) (AD) 57. Sections 91 and 92— Section 102—Burden of proof—When fraud is alleged— Part of a document can not be challenged— The burden of proof lies upon he who alleges the fraud. A document can be challenged as forged or fraudulent as a whole. Mo document can be partially challenged either as fraudulent or valid. Hussain Ahmed and others Vs. Sharifullah and others. 3 MLR (1998) (AD) 212 Section 114(e)- Presumption of correctness of official acts— So long not rebuted by showing the contrary, the official acts done shall be presumed to have been done duly and correctly. Bangladesh represented by the Secretary Ministry of Land vs. Abul Hossain and others. 3, MLR (1998) (AD) 193. Section 115- Estoppel— In the case under Administrative Tribunals Act, 1980 (Act VII of 1981) acceptance of pensionary benefits in compelling circumstances does not operate as estoppel within the meaning of section 115 of the Evidence Act. Jahangir Kahir Vs Bangladesh represented by Secretary Ministry of Home Affairs. 1, MLR (1996) (AD) 46. Section 115— Promissory Estoppel— Previous approval of Government and subsequent cancellation— When arbitrarily done— The approval given by the Government to certain proposal does not constitute promissory estoppel. Government can no doubt, cancel its approval but it must do so by showing sound and proper reasoning, otherwise such action cannot be sustainable in law. The Government must act consistently and -not whimsically. The Chairman, Board of Investment and others Vs. Bay Trawling Limited and others. 3, MLR (1998) (AD) 54. Section 115- Estoppel and Waiver— Cannot be against statutory rights— There can be no estoppel or waiver against statutory rights. To act in a particular way under protest to protect one's right from impending hazards, does not constitute estoppel or waiver. Dayat Chandra Mondal and others Vs. Assistant Custodian, Vested and non¬resident property and A.D.C (Rev) Dhaka and others. 3, MLR(1998) (HC) 18. Promissory Estoppel— When the promisor cannot fall back— Once promise is made the promisor is legally bound to execute lease deed in favour of the promisee. The promisor cannot fall back and is bound by the promissory estoppel. Dhaka City Corporation Vs. Government of Bangladesh and others. 1, MLR (1996) (HC) 256. Section 115—Waiver and estoppel— Plea of waiver and estoppel in order to operate as a bar has to be proved by cogent evidence. Rokeya Begum Vs. Md. Abu Zaher & others. 5 MLR (2000) (AD) 171. Section 115— Estoppel—Statutory rights-not defeated— Statutory right cannot be taken away by a mere assertion of allegations of estoppel or waiver or acquiescence. Unless proved by cogent and reliable evidence, the principle of estoppel does not operate. Abdus Sobhan Sheikh Vs. Kazi Moulana Jahedallah & others. 5 MLR (2000) (HC) 140. Section 138— Right to cross examination is not confined to the extent of the matters of examination in chief— The right of adverse party to cross examine a witness is not confined only to the matters of his examination in-chief but it extends to all the relevant facts involved in a suit. Khalilur Rahman (Md.) Vs. Md. Asgor Aii. 5 MLR (2000) (HC) 158. Legal presumption of execution and registration of an old document— Possession is material factor— So long the contrary is not shown, there is the legal presumption that the disputed Kabala deed which is 50 years old, was legally and validly executed and registered. In deciding the genuineness of a very old Kabala deed, the possession of the land of the deed should be considered as very material and cogent factor. Lutful Karim and others Vs. Shahidullah and others. 3, MLR (1998) (AD) 215. Section 138— Re-examination of witness—When can not be done— Section 138 provides for how witnesses are to be examined, cross-examined and re-examined. After a witness has been examined and cross-examined can be re-examined only for clarification of any ambiguity in his statement. Re-examination of a witness cannot be allowed to destroy the effect of cross-examination. Ihteshamur Rahman Vs. Masuda Khatun and others. 3, MLR (1998) (HC) 172. Section 167— Retrial when can not be ordered— When there are sufficient evidence on record to justify the decision the question of improper admission or rejection of any evidence is immaterial and merely for this no new or fresh trial can. be ordered. Jamaluddin and others Vs. Md. Abdul Majid and others. 3, MLR ( 1998) (AD) 102. Admissibility of document in evidence which is not brought through Foreign office— It is not correct that a certificate of Foreign Educational Institution is not admissible in evidence merely because it is not brought through the Foreign office. Managing Committee, Pirdangi S.I. Senior Fajil Madrasha and another Vs. Md. Mozammel Hoque and others, 5 MLR (2000) (AD) 316. Section 3— Admissibility of video Cassette in evidence— Video cassette is a document within the meaning of the Evidence Act and accordingly is admissible in evidence in judicial proceedings whenever relevant in the like manner as the tape record and its sound and voice- Mrs. Khaleda Akhter Vs. The State. 5 BLD (HCD) 303. Sections-3 read with Section 30 Confession is nothing but admission of guilt by accused. Confession of an accused is not an evidence as defined in section 3 of The Evidence Act. Under Section 30 confession of a co-accused can be taken into consideration but cannot be treated as substantive evidence and can be pressed into service in support of other evidences. The State Vs. Md. Ershad Ali Sikder & Ors. 12 BLT (HCD)-125 Section- 3 Read with Section- 30 In the present case there being no substantive evidence either direct or circumstantial except as to some evidence about motive confession of co-accused alone cannot be considered against the appellant lawfully. The evidence of P. Ws. 4 and 7 only shows mat there was rivalry with deceased Shahid in respect of calling customers for the two adjoining hotels and from this evidence alone it is very difficult to implicate the appellant with the involvement of murder of deceased Shahid or with the abatement of the said offence. This case lacks in sufficient legal evidence and in that view of the matter the benefit should go to the accused. Ustar Ali Vs. The State 5 BLT (AD)-265 Sections-3 and 30 Criminal Trial Confessing accused Abdus Satter implicated himself in the alleged dacoity along with the accused appellant and others wherein he stated that the appellant was the leader of dacoits and his instance the dacoity was committed, but there is no corroborative evidence in support of the said confessional statement. So, it cannot be considered as evidence under section 30 of the Evidence Act. So relying on the said evidence conviction cannot be sustained. Mojibar Vs. The State 7 BLT (HCD)-224 Section- 3 Read with Section-38 In the instant case, except appellant A. Rahim the other 3 appellants have not made any confessional statement and there is also no reliable evidence oral or documentary or circumstantial involving them in the commission of the alleged crime of murder of the victim or concealment of the dead body of the deceased and it appears that they have been convicted and sentenced only of the basis of the confessional statement of the co-accused A. Rahim which is illegal and therefore liable to be set aside. Abul Khayer & Ors. Vs. The State 4 BLT (HCD)-89 Section-8 & 9 Murder Charge – Abscondence of accused – corroborative evidence of his guilt. In the instant case there is in fact one eye witness P. W. 3 whom we have found to be fully trust worthy and reliable and she has been corroborated by their witnesses and also by the medical report and the deposition of the doctor along with this we may take into consideration the circumstances at the case as have been disclosed in this case by the fleeing away of the accused Ranajit just after the occurrence and thereafter at the time of the trial his decamping from the police custody and then his continuous absconsion till today- Thus the conduct of accused Ranajit must be taken into consideration under section 8& 9 of the Evidence Act as an incriminating substance against him- We are of the view that the prosecution has been able to establish the charge against accused Ranajit beyond all reasonable doubt and the learned Additional Sessions Judge has rightly convicted him under section 302 of the Penal Code- relied on 33 DLR-274. The State Vs. Ranjit Kumar Mallik 4 BLT (HCD)-47 Section -11 The plea of alibi taken by the accused needs to be considered only, when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. Kazi Mahbubuddin Ahmed Vs. The State 13 BLT (HCD)-524 Section-27 The recovery of other wearing apparels and toiletries of the deceased at the showing of the condemned- prisoner while in police custody leads to the irresistible conclusion that the condemned- prisoner had the most intimate relationship with the deceased and that wearing apparels and toiletries of the deceased must have been either in the possession of the condemned prisoner or within his knowledge as to where those articles were. There recoveries are admissible in evidence under Section 27 of the Evidence Act. Khalil Miah Vs. The State 7 BLT (AD)-245 Section – 30 Law is well settled by pronouncements of Apex Court of Sub-Continent that confession of a co-accused cannot be the sole basis of awarding conviction upon a non-confessing accused as postulated in section 3 of The Evidence Act. Confession of a confessing accused can be a solid pill for awarding conviction upon a non-confessing accused on finding him guilty of offence if the confession of a co-accused implicating non-confessing accused stand corroborated by other corroborative evidences. Abdus Salam @ Biplob Vs The State 13 BLT (HCD)-567 Section-32 Section-32(l) Section -32(1) Section-33 At the instance of the defence time was allowed for further cross-examination of P. w. 1 and thereafter this witness could not be produced by the prosecution for further cross-examination, witness P.W.I having not been fully cross-examined, his evidence was inadmissible and should have been left out of consideration as contended by the learned Advocate for the appellants. Held: The requirement of section 33 of the Evidence Act has been fulfilled in this case as it appears that the defence had ample opportunity to cross-examine the witness but for the fault of the accused and their subsequent conduct the concerned witness could not be produced on the dock for fur¬ther cross- examination. Hence on such circumstances it cannot be said that the evidence of P.W.I is in admissible. Bakul & Ors. Vs. The State 4 BLT (HCD)-14 Section-34 read with Bankers Books Evidence Act, 1891 Section-4 Section 4 exempts a banker from producing bankers' books, namely, ledgers, day books, cash-books, account-books and any other books used in the ordinary business of a bank to prove its claims. Instead, if a bank shall produce a certified copy of any entry or entries in the books of the bank in a manner as provided by section 2(8) of said Bankers' Books Evidence Act. Even when such certificate is produced and proved to have been so written that will not if so facto prove the claim of a bank. Such entries would have to be corroborated by independent evidence. BCCI Ltd. Vs. Bangladesh Electrical Industries Ltd. & Ors. 12 BLT (HCD)-502 Section-45 Opinions of Experts When the defence asserts that the disputed document is a genuine one and it has been duly acted upon. It becomes incumbent upon the prosecution to obtain the opinions of the hand writing and finger-print experts on the disputed deed to prove forgery. Md. Ismail Hossain & Ors. Vs. The State 8 BLT (HCD)-290 Sections-57 & 60 Whether the author is living or dead, the book of reference must be an appropriate reference book in that the author must be shown to be properly qualified to make statements upon the subject and so only standard books acknowledged as authorities may be referred to-The reference to the booklet of unknown origin is therefore entirely disapproved. State Vs. Abdul Khaleque 5 BLT (AD)-227 Section- 80 Non examination of the Magistrate recorded the confessional statement- the no requirement under the law that Magistrate should be examined the Gf shall presume the document to be gen and that the statement was duly taken. Abdul Khaleque Mir Vs. The State 2 BLT (AD)-172 Section-106 Burden of proving fact specially within knowledge of any person. The definite and specific defence plea is Bus No Mymensingh BA-157 driver by ! was not involved in the accident but Bus Mymensingh BA-191 belonging to the owner was involved in it. This being within the special knowledge of the accused within the meaning of section-106 of the Evidence Act, a burden was cast upon him discharge it, mere so when the prosecution proved the guilt of the accused convincing and overwhelming evidence. The accused hopelessly failed to discharge the special burden. Namaluddin Vs. The State 8 BLT (HCD)-121 Section -106 It appears that both the courts considered the defence plea and held plea to be false. It may be stated here that the defence is not always bound to give any explanation but if any explanation is given the court may consider it. The trial court after discussing and considering the evidence of witnesses found that Chapa was killed by somebody from inside the room and not by any one from outside the room through the window as claimed by the accused. The High Court Division in its turn held the same view. The High Court Division in clear terms held that it was not possible for any outside-miscreants to cause such injuries standing on nine inches wide carnish on the face and head of Chapa and kill her. The High Court Division thus in unequivocal terms expressed the clear view that the explanation given by the defence totally falls through and according to the High Court Division it was established that Chapa was killed in her room by the miscreants who were living within the house, went into her room, caused injuries in such manner that ultimately she succumbed to the injuries. In view of such concurrent findings of both the courts below on the basis of evidence on record we do not like to make further exercise on the point and we also are of the view that Chapa must have been killed by person/persons living inside the house on the night of occurrence. The State Vs. Khandker Zillul Bari 14 BLT (AD) 91 Section-114(g) The alamats including the incriminating articles along with the alleged heroine were not produced before the trial court- The alleged report of the chemical examiner was also not available in the record- material witnesses the I/O and the chemical examiner, none of them was produced as a witness it must be held that the learned Additional Sessions Judge committed illegality is not drawing an adverse presumption against the prosecution under section 114 (g) of the Evidence Act. Ashok Kumar Saha Vs. The State 2 BLT (HCD)-79 Section-114(g) The confessional statement Ext.7 of the confessing accused bears the reference of one Haider Ali son of Janab Ali who is neither witness nor accused in this case. The neighbours as well as the persons who allegedly took part in the occurrence as per confessional statement of the accused Akbor Ali are the relevant witness and non examination of any of them as witnesses or brining them on dock as accused creats presumption U/ S 114 (g) of the Evidence Act and raises a question of doubt in the prosecution and benefit of this defect would go to the accused. Md. Akbor Ali & Ors. Vs. The State 7BLT (HCD)-317 Section-114(g) In view of admitted bitter relationship between the parties as well as the private witnesses so examined in this case it was desirable for the prosecution to examine the close independent and disinterested neighbours. In the face of clear admission that 40/50 co-villagers were present just after the occurrence and they having not been produced in Court to show the bonafide of the prosecution, we find no with alternative but to hold that had they been examined, would not have supported the prosecution case and in view of this matter the benefit of section 114(g) of the Evidence Act should go in favour of the defence. Korban ali & Ors. Vs. The State 11BLT (HCD)-267 Section-114(g) Onus of proof—although the prosecution must prove the guilt of the accused beyond all reasonable doubt, nevertheless after it has been shown that the wife at the relevant time of occurrence was at her husband's house and that she is subsequently found dead an obligation is cast upon the defence to account for the circumstances leading to the death of the deceased failing which the husband will be responsible for the death of the deceased. Gias Uddin Vs. The State 11 BLT (HCD)-8 Section-114(g) In the face of clear admission that 40/50 co-villagers were present just after the occurrence including the chairman and member of local union parishad and they having not been produced in Court to show the bonafide of the prosecution, we find no other alternative but to hold that had they been examined, would not have supported the prosecution case and in view of this matter the benefit of section 114(g) of the Evidence Act should go in favour of the defence. Monu Sheikh & Ors Vs. The State 12 BLT (HCD)-177 Section-114(g) The independent person —'Kamla' kader who was allegedly residing in the P.O. house in the night of occurrence having been with-held, we find no other alternative but to hold that had he been examined in this case, would not have supported the occurrence as alleged. Monu Sheikh & Ors Vs. The State 12 BLT(HCD)-177 Section-114(g) The adverse presumption in the background of illustration (g) of section 114 of the Evidence Act can be drawn against the party or the parties in the suit if he or they do not depose about a fact when he or they personally knowing the whole circumstances of the case is not deposing in the case or that in a situation when particular thing being exclusively known to or within the knowledge of a party he ought to have appear before the Court to explain the same or a party who had personal knowledge of the case, then there was necessity to go into the witness box to depose about the fact which was within the exclusive knowledge or matters about which suitor(s) alone has actual knowledge and he alone is competent to state about the matter at the relevant time or that the suitor (s) who is a material witness as regard particular mater then if not give evidence or a party whose evidence is material does not go into witness box the Court in such a situation can draw up an adverse presumption against such person(s) or suitor(s). Hajee Lal Miah Vs. Nurul Amin & Ors. 13 BLT (AD)-145 Section 114(g) Presumption against Prosecution Case In First Information Report it is stated that Sub-Inspector Sunil Kumar Sen who figured as charge sheet witness no. 11 accompanied Sub-Inspector of Police PW1 and, also! PW 6 to the place of occurrence and apprehended convict-appellant. PW6 in his testimony testified that local chowkidar took them to the place of occurrence but these two persons had not been placed on witness box by prosecution. No explanation even had been even assigned for their non-examination by prosecution. Nor production of above two witnesses was vea much fatal for prosecution case and presumption contemplated in Section 114(g) of The Evidence Act must follow. Babul Vs. The State 13 BLT (HCD) 339 Section 114(g) It is a cardinal rule in the law the best available evidence should be brought before fee court to prove a fact or the points in pue- when material witnesses are not called in a case and no sufficient explanation has been given for their absence, the court may draw a presumption that they would not support the prosecution. Md. Ali Azam & Ors Vs. The State 13 BLT (HCD)-473 Section-114(g) In the instant case, the neighbors as mentioned above are the material witnesses who have been withheld from the examination and the prosecution has also failed to convincing reasons for their examining them. The prosecution examined on relatives and evidence cannot be relied n. Md. Ali Azam & Ors Vs. The State 13 BLT (HCD)-473 Section – 114(g) None of the brothers and sons of the deceased was examined. Not a single neutral neighbouring people was examined. Due to their non-examination presumption would be had they been examined they would not have supported the prosecution story. Non-production of the wife of the deceased, an alleged injured witness, raises serious doubt as to the truth of the prosecution case. Abul Kalam & Ors. Vs. The State 14 BLT (HCD)214 Section -114(g) ?????? ?????????? ?? ???????? ??? ?????? ???? ????? ?? ???? ??? ??????? ?????? ??? ??? ?? ??????? ?????? ?? ?????? ??? ????? ??????? ?????? ??????? ??? ???? ?? ???????? ??????? ??? ???(??) ????? ????? ? ???? ???????? ?????? Md. Motiar Rahman Vs. Mst Asia Khatun & Ors 15 BLT (HCD)313 Section-118 Mode of Ascertaining Competency of a Child witness. It appears that in the instant case, a minor boy aged about 5/6 years is the only eye witness to the occurrence but in his cross -examination stated that he did not see the occurrence and he deposed as per dictation of the information of the case with whom he has been living since the occurrence-Learned Sessions Judge while examining a child witness did not look to his intelligence and competency and there is no such endorsement in the order sheet or deposition or judgment- there is also no sufficient corroboration by any independent and reliable witnesses- learned Sessions Judge was not justified in conviction the accused appellants relying on the solitary evidence of a child witness. Kawsaun Nessa & Anr VS. The State 3 BLT (HCD)-122 Section-118 The position of a prosecutrix is a little different from that of an injured person simpliciter. The possibility of a prosecutrix being a collaborator cannot always be ruled out. Therefore a corroboration of the evidence of prosecutrix by at least some circumstantial evidence or a medical examination is always desirable. Md. Hasan Vs. The State 7 BLT (AD)-378 Section-137 and section 139 By Section 137 and 139 of the Evidence Act an accused person has been given the opportunity to cross-examine a witness produced by the prosecution or to produce his own witness and evidence in support of his defence. Jahangir Alam Vs. The State 15 BLT (HCD) 191 Section-145 read with Code of Criminal Procedure, 1898 Section-161 The Statement of an accused person which is not a confession but contains an admission of certain relevant facts is admissible under sections 18-21 of the Evidence Act, provided it is voluntary, even though retracted, if found to be true by the trial Court which is required to be corroborated by evidence of other witnesses in order to be the basis for conviction of the co-accused respondents and as regards statement under section 161 of the Code of Criminal Procedure the same is an statement and is not an evidence in the case and as such not at all admissible in law unless the witnesses are confronted with the said statement while deposing on dock having deposed contrary to the said statement, the same could not be of any avail to the prosecution but the statement could be utilized under section 162 of the Code of Criminal Procedure to contradict the witnesses in the manner provided under section 145 of the Evidence Act. Thus the statement under section 161 of the Code of Criminal Procedure is restricted to an investigation by the police for the purpose of police report. The State Vs. Md. Mominullah (Mohan) 15 BLT (AD) 251 Section-154 Hostile witness The evidences of witness is not to be rejected either in whole or in part simply because of being cross-examination by the party calling him, but the whole of the evidence as far as it affects both parties, favourable or unfavourable must be taken into account and assessed like any other evidence. Amir Hossain Phali Vs. The State 5 BLT (HCD)-89 Section-157 Section 157 of the Evidence Act provides! that the former statement of a witness to furnish corroboration can be proved only if-it was made "at or about the time," where the fact took place. In order to corroborate the testimony of a witness any former statement made by such witness relating the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact may be proved. This section clearly speaks of the intention of the law that when the previous statement is to be use corroboration it must satisfy certain specifies^ conditions that the statement should be ma in relation to a fact which is so fresh in mind of the narrator that he may be assured to be speaking under pressure of collection alone, undiverted by any per motive i.e. the conditions should be such import proper legal sanctions in case should be variations from the truth. The State Vs. Enayet Hossain @ Endu 12 BLT(HCD) 242 Section-193 Circumstances evidence —in the pre case it had been admitted by the defence I the wife died in her husband's house j there is no suggestion that the husband | away at the time of occurrence, prosecution assertion that the Appellant at his house and killed his wife has not been challenged on the ground that he was outside the house at the relevant time. The defence case that the deceased died by taking poison has been disproved. On the other hand the prosecution has proved beyond all reasonable doubt that the wife was killed and circumstantial evidence indicates that the husband was at his house at the time of occurrence. Further it appears that the Appellant was in absconsion from after the death of the deceased until his surrender on 08.11.1995 more than five years later. If the deceased dies of consuming poison he should have informed the police accordingly instead of absconding. Although his long period of absconsion is not by itself conclusive of his guilt but if lend weight to the circumstantial evidence against him. Gias Uddin Vs. The State 11 BLT (HCD)-8 Evidence Act, 1872 read with Majority Act, 1875 Age of the victim School certificate—in the instant case doctors certificate as to age of the victim at 17 1/2-181/2 years of age and an opinion as to the age is no conclusive proof thereof and the declaration in the statement under section 164 Cr. P.C. of the victim that she was a major are no proof of age and that radiologist’s opinion cannot be preferred to psitive evidence like school certificate. Arun Karmaker Vs. The State 10 BLT (AD)-40 Circumstantial Evidence P.W. 4 Abdul, Aziz who claimed to be a 'flight-guard in the area of Armanitola and he stated that he saw deceased Akber Sheith And Sultan Ahmed P.W.2 to go together by nchshaw towards Ananada Moyee School. At United Transport Agency, very near to the place of occurrence he heard the firing sound and saw these two accused Ali Jan and Fazlu, Asad, Nairn and two others running away crossing the wall of Armanitola filed. It is not denied that near the place of occurrence there is Armanitola Math having a boundary wall. P.Ws. 14 and 16 have stated that they got this information from P.W. 4 in their house and in hospital immediately after the occurrence. All other P.Ws. also heard from P.W. 4 that he saw these two accused running away from the place of occurrence-—This strong circumstance lends support to the presence of the accused persons at night in the plan of occurrence. Md. Nurul Alam Vs., Ali Jan & Ors. 8 BLT (AD)-23 Circumstantial Evidence Circumstantial Evidence – Sufficiency of conviction Admittedly deceased Dhan Mia died in the house of accused Malek Mia. The father of Moina who is the wife to the deceased and that the accused were present in the house of Malek Mia on the night of occurrence. The defence has not challenged that the accused were not present in the house of Malek Mia. Where Dhan Mia died on the night of occurrence, no suggestion was given to that effect that they were elsewhere. A suggestion was given to P.W. 6 that Meherunnessa and her son Sibu were not present. Meherunnessa was not convicted for murder. As regards Sibu, P.W. 2 stated that she saw him. Therefore the complicity of appellants in the murder of Dhan Mia been established by the prosecution beyond any doubt. The prosecution also has been able to prove the first circumstance support of the prosecution case deceased Dhan Mia along with P.Ws. went to his father-in-law's house to bring wife Moina. P.W. 2 has satisfactorily proved that she stayed in that house and that she been all the accused at night in the east hut, thus is he second circumstance prove against the accused. After the murder of Dhan Mia, the accused got a false lodged through Meherun Nessa with the police stating that Dhan Mia committed suicide with malafide intention of screening them (accused) from legal punished although they believed that the information given to the police was false. This is another circumstance P.W. 11 holding examination on the persons of deceased found injuries and clearly opined that the death was due to the said injuries, the defence could not satisfactory explanation as to how Dhan sustained such injuries. This is an circumstance proved against the acc Since the plea taken by the defence has not been substantiated by them or injuries alternative, having found false in vie the medical evidence on record, and we find that the accused were present place of occurrence when the deceased the prosecution has been able to prove a strong circumstance of the complicity accused in the murder of Dhan Mia excluding all other hypothesis than that of the guilt of the accused. Yunus & Ors. Vs. The State 8BLT (HCD)-245 Circumstantial Evidence – When sufficient to hold a man guilty. In the instant case, it was found on evidence that Saiful Islam was a rickshaw puller and used to work in Chittagong. He enticed the victim and brought her home in his village at velara, Gaibanndha, from Chittagong. He married her on 19.05.1996 and presumably started their conjugal life together. Suddenly, he dead body of the victim was found to be dangling from a tree on the morning of 24.05.1996. There is no evidence to suggest that he was not with her on the fateful night in their house. Besides, his inexplicable conduct showing a total disregard for the dead body of his own wife highlights his reckless indifference towards |is near ones and nakedly exposes the pathological condition of his mind. In such circumstances, in the absence of any reasonable explanation coming from his side, the law shall hold him responsible for the death of his wife, the victim. The State Vs. Md. Joynal Abedin & Ors. 8 BLT (HCD)-376 Circumstantial Evidence – Onus to prove True it is that an accused has got no obligation to explain anything , the onus to prove the accusation is always on the prosecution. But if two persons live together under one roof and one of them suddenly dies in a suspicious circumstances in an unnatural manner, the other person comes under an obligation to explain the circumstances leading to his or her death. In the absence of a plausible explanation, the law casts a prima facie responsibility on the person who is alive, for the death of the victim who was earlier with him just before his or her death. The State Vs. Md. Joynal Abdin & Ors. 8 BLT (HCD)-376 Circumstantial Evidence when not sufficient for conviction The Trial Court considered it as strong a circumstance against the appellant why he was though present in the PS at the time of lodging the FIR but did not become the informant. But he failed to notice that the FIR was written by P.W. 18 Ranjit Baruna and after reading it out he took the signature of P.W 1 Abu Hossain, Another fact noticed by the Trial Court, why P.W.I flatly denied in his deposition that the appellant was with him at the time of lodging the FIR even after his attention was drawn to the FIR did not receive proper consideration from it. Moreover, P.W. 17 found only one injury causing the death and that injury was caused by the appellant and the search for money was also made by the appellant as per the confessions then how the confessions could be treated to be inculpatory. As stated earlier, the Court found that there is not an iota of evidence on record from any of the witnesses examined by the prosecution implicating the appellant with the offence or any other accused persons. All three confessions if closely considered, do not inspire any confidence in anyjudicial mind. So, this a clear case of no evidence. For the reasons, the judgment and order of conviction based solely such confessions cannot therefore be sustained in law. Abu Sayed Vs. The State 9 BLT (HCD)-175 Circumstantial evidence In a case of circumstantial evidence, the incriminating circumstances must be clearly proved and they must not be incompatible with any reasonable hypothesis of innocence. The State Vs. Monu Miah & Ors. 10 BLT (AD)-12 Circumstantial Evidence All the aforesaid witness found the appellant carrying a 'Dao' and was threatening to commit suicide if Firoja would not go with him. He stayed for Firoja Begum in her father's house upto 2/3 A. M. of the fateful night. May be after loss of both eyes, he became absolutely dependent on her to pressure his daily routine of life. But it is in evidenced that Firoja Begum became tired of Rouf and tried to get rid of him, even by divorce, which Rouf might have learnt and could not accept. P.W.-9 Ataur Rahman found Firoja died due to asphyxia by strangulation. Abdur Rouf moved out of the house of P. W.-2 Gisauddin holding Firoja. Then, in the early morning Firoja Begum found lying dead on the south bank of the canal and Abdur Rouf was also found lying with her, of course with a cut injury at his neck. Nobody came between them in the intervening time. It would not be difficult for him to strangulate her to death, when he was holding her. After fading her death, as was found by the trial court, he might have wanted to avoid the liability inflicting a cut on his own neck with the seized 'Dao' In the Absence of any other circumstance or possibility. We find all circumstances indicate toward Abdur Rouf. Abdur Rouf @ Rab Howlader Vs. The State & Ors. 11 BLT (HCD)-198 Circumstantial Evidence Circumstantial evidence is not direct to the point in issue, but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. For a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances, be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or "factum probandum" must be proved indirectly by means of certain inferences drawn from "factum probandum" that is the probative on evidentiary fact. The State Vs. Md. Ershad Ali Sikder & Ors. 12 BLT (HCD)-125 Circumstantial evidence The rule of circumstantial evidence is that the chain of circumstances must be knitted together closely, so as to led to an irresistible conclusion that the accused appellant alone had committed offence by excluding the possibility that any other person might have committed the offence. The chain of events must be such that the possibility of innocence of accused is wholly excluded and such facts are incapable of explanation of any, other reasonable hypothesis other than the guilt of the accused. Rawsan Ara Begum Vs. The State 15 BLT (HCD) 29 Circumstantial Evidence P.W. 3 a neighbour of the accused stat that he heard cries from the room of the victim Sheully in the night of occurrence b he was not allowed to enter the house and o the following morning he heard that Sheully was murdered- P.W.6 Doctor, who held the postmortem examination of the dead body of deceased Sheully Begum found several injuries, P.W.6. stated that the injuries as found might cause the death of the victim-The wife having died in the house of her husband in the night of occurrence and being no plausible and acceptable explanation as to how the victim received those injuries, the circumstantial evidence relied upon by the prosecution are strong enough to establish the guilt of the petitioner. Abdus Shaku Miah Vs. The State 3 BLT (AD)-187 Circumstantial Evidence The principle and law for convicting the accused only on the basis of the Circumstantial Evidence is well settled by many decisions such as 1985 BLD (HCD) 129, Para-21 where the test were re-iterated as to the Circumstantial Evidence- AIR 1984 (SC) 1622 has laid down singular principle's followed by 41DLR (1989) 10. Haji Md. Jamaluddin and others Vs. The State 1 BLT (HCD)-23 Circumstantial Evidence Both the Trial Court and the High Court Division considered the circumstantial evidence against the petitioner in details and found that the circumstances are such that no other hypothesis other than the guilt of the petitioner can be derived therefrom. Although the accused -petitioner was also injured in the bomb explosion there is absolutely no suggestion to the prosecution witnesses that the bomb was placed in the Beauty Parlour before the arrival of the petitioner and that the petitioner was in no bray involved with the possession of the bomb. On the contrary the state of the accused-petitioner's trouser which was made a material exhibit evidently showed that the explosion ripped through his trouser, thereby making the circumstantial evidence even more compelling against the petitioner. Ranjit Vs. The State 5 BLT (AD)-206 Circumstantial evidence Law on circumstantial evidence is well settled. It requires that prosecution is to prove each of the circumstances having a definite tendency pointing towards the guilt of accused person and, though, each of the circumstances by itself may not be conclusive but the cumulative effect of proved circumstances must be so complete that it would exclude every other hypothesis of innocence and unequivocally point to the guilt of the accused. The State Vs. Md. Delwer Hossain Faraji 13 BLT (HCD)457 Doubtful- the allegations of rape It appears from the facts of the case that victim Shakina alone went to the house of her sister Shahida for having dinner at that house and was coming back to her house at 10-00 at night accompanied by her sister with a kupi bati in hand and when the light of the Kupi bati was allegedly extinguished then her sister went back to her house for lighting the kupi bati keeping the victim girl in the midway. It has not been explained why the victim girl was kept above in the midway instead of taking her back with the sister when she went back home for lighting the kupi bati. This factor also create doubt about the whole allegations of rape-absence of sign of rape in the medical report and non-examination of the wearing clothes made the whole case most doubtful one. Seraj Talukder Vs. The State 6 BLT (HCD)-82 Vital Evidence In a case of rape, doctors report is a vital evidence to prove the sign of rape but it appears from the record that although the victim was examined by a doctor but it appears that neither the doctors was examined in the case nor his report. Seraj Talukder Vs. The State 6 BLT (HCD)-82. EVIDENCE ACT, 1872 Evidence Act, 1872 (I of 1872) Section-6 Unregistered deed of gift—the plaintiffs case was that the suit property was originally belonged to Abdul Wahab Howlader. The said Abdul Wahab Howlader executed a deed of gift in favour of the plaintiffs on 27.7.64 and delivered the possession but the said deed could not be registered due to certain difficulties. The defendants claimed the title over the suit land as a residuary sharer. Hence the plaintiff filed the title suit for declaration of title in respect of suif land—the learned trial court in consideration of oral and documentary evidence and materials on record decreed the suit. Against the said decree the defendants preferred appeal. Learned Appellate Court allowed the appeal by reversing the decree of the trial court—Held: That the plaintiffs, being in exclusive possession over the statutory period of limitation from the date of institution of the suit by the plaintiffs in the year 1984 and to the complete ouster of the defendants for about 20 years from the suit property have acquired a valid title even on the basis of the defective deed of gift being an unregistered one. It further appears that the defendant could neither challenge the said unregistered deed Ext. 1 nor file any suit to establish their alleged right in the suit property within the statutory period of 12 year and it is further held that the defect of the plaintiffs deed of gift has been cured with the passage of time and the plaintiffs imperfect title has been perfected by the said period. Amirunnessa & Ors Vs. Abdul Mannan Howlader & Ors. 3 BLT (HCD)-245 Section-6 -Document—Plaintiff instituted the suit for declaration of title and also for a declaration that the suit property cannot be treated as vested and non-resident property (Enemy Property) alleging, inter alia that one Jagat Chandra Karmaker was the C. S. recorded owner of the suit property. After his death his son Gopal Karmaker inherited the said property. This Gopal Karmaker transferred the suit property to one Harendra Lal Saha and Jagannath Saha. After the death of Harendra Lal Saha his property was inherited by his two sons Chandi Gopal Saha and Ashutosh Saha. One Parveen Akter purchased the suit property by registered deeds from Chandi Gopal Saha, Ashutosh Saha and Jagannath Saha. From this Parveen Akther plaintiff- appellants had purchased the suit property while the plaintiffs were possessing the suit land, they came to know that the property in question was declared as vested and nonresident property—learned Subordinate Judge dismissing the suit holding that the plaintiffs failed to produce any document to show the transfer in between Gopal Karmaker and Harendra Lal Saha and others— Held : The averments made in the plaint and the evidence of P.W.I together with the written statements of defendant No. 2 and the evidence of P.W. I it clearly appears that Harendra Lal Saha and others became the owners of the suit property and they possessed the same and sold the same to Mrs. Parveen Akhter by registered sale deeds in 1981—the rent receipts together with the continuous record as right vide exhibits I series may be treated as collateral evidence of title in favour of the plaintiff. Now, if we consider the oral as well as documentary evidence as stated above, we find that this Harendra Lal Saha and others acquired right and title over the suit property. The documents by which the heirs Harendra Lal and Jagannath transferred the suit land to Parveen Akhter and the registered document by which Parveen Akther transferred the land to the present plaintiffs are not disputed at all. So it is held that the learned Subordinate Judge failed to consider the material evidence or record as stated above and he has arrived at a wrong finding and as such it cannot be sustained. [Paras-16 & 17] Md. Amjad Hossain & Ors Vs. Upazilla Nirbahi Officer Savar & Ors 3 BLT (HCD)-163 Section-33 The market value of the vessel of the plaintiff was determined by the Admiralty Judge on the basis of Ext. 25 series which is the deposition of seven witnesses (employees of the plaintiffs vessel) who appeared before the Magistrate, 1st. Class, Marine Court, Dhaka. It is really unfortunate that deposition of those persons who deposed in a criminal proceeding before the Marine Court was relied upon by the Admiralty Judge. Under section 33 of the Evidence Act that proceeding was not between the same parties. As a matter of fact, Ext. 25 series is not admissible in this admiralty proceeding and Ext. 25 series cannot be legally accepted as the basis for determining the market value of the vessel and consequently the passing of the decree of Tk. 80,10,000/- is without any legal evidence and the same cannot be awarded in favour of the plaintiff as has been done by the learned Admiralty Judge. [Para-14] BIWTC Vs. Al-Falah Shipping Lines Ltd. & Ors. 6 BLT (AD)- 103 Section-73 Handwriting expert opinion as to the identity of the disputed signatures arid initials on a questioned document—Contention than the opinion of the handwriting expert is preferable to the courts exercising the power under section 73 of Evidence Act which is to done very cautiously and the said course is hazardous and inconclusive was rejected— petition dismissed. It is true that long line of decisions have expressed divergent views and one view is that the Court should not take such hazardous steps for expressing any opinion and another view to the contrary. In the context of two views, a Judge naturally hesitates to exercise the power conferred by section 73 to compare handwriting by using his own eyes. This is more so whenever evidence is scanty or unreliable or there is no evidence of hand-writing expert but these are mere words of caution. There is no hard and fast rule which prohibits such course by the Judge. The privy Council itself compared the disputed signatures with admittedly genuine signature in Monindra Vs. Tshalaxmi Bank, A. I. R. 1945 P.C. 150 and the same was followed in A.I.R. 1949 PC 325. Mr. Gafur strenuously urged that this court should lay down the law. This contention does not appeal to us in view of the fact that the proceeding is still pending in the Court below and sufficient guidance has been given by the long line of decisions for the Court which do not warrant any further pronouncement. Nitai Chand Shah & Ors. Vs. Md. Aga Khan & Ors. 1 BLT (AD)-46 Section- 101 Onus of proof—both sides have adduced their evidence in support of their respective cases and when the date is fixed for argument the defendant petitioner filed two applications before the Family Court, one for examining the plaintiff opposite party No. 1 by a Gynecologist to see whether she is still virgin in the instant case the plaintiff-opposite party No. 1 is to prove her case and will get its own course and for matter she cannot be examined by a competent doctor to as certain as to whether she is virgin or not because thereby the onus of proving the defense will be illegally shifted on the plaintiff opposite party No. 1. Learned Family Court rightly rejected the application of the defendant petitioner. [Para-8] Md. Abdul Mannan Sikder Vs. Mst. Nurun Naher Begum 4 BLT (HCD)-148 Section- 101 Burden of proof—vested property — when challenged in a Court of law, the onus is heavily on the Government to prove affirmatively that the property in question is in fact a vested property, failing which some evidence to the contrary adduced by the successors-in-interest of the original tenant or the transferees showing that they are in rightful possession of the disputed properties, is sufficient to take the same out of the ambit of enemy property laws. Mere claim by the Government or by the vested property authority that a certain property is a vested property, without the necessary factual basis and legal foundation, has no validity in the eye of law. [Para- 18] Maran Mondal & Ors. Vs. A. D. C. (Rev). 6BLT (HCD)-22. Section-101 Whether the cashier is a necessary party – The plaintiff respondent filed money suit against Bank, the sole defendant appellant for realisation of deposited money by himself— the cashier is not a necessary party in the suit in the facts and circumstances of the case. (Para-8) Pubali Bank Vs. Md. Selim 7 BLT (HCD)-21 Proof of a document Unless objection as to admissibility of a document was taken at the earlier opportunity, that is, at the time of admitting the documents into evidence and marking it as an exhibit, the question of its admissibility cannot be raised at a subsequent stage. (Para-l3) Pubali Bank Vs. Md. Selim 7BLT (HCD)-21 Sections-102, 103 & 104 Suit for cancellation of Heba-bil-ewaz— The onus was upon the defendants according to prove the gift has been made intentionally, voluntarily and the consideration has passed. [Para- 12] Md. Nurul Islam & Ors. Vs. Azimom Bewa 6 BLT (HCD)- 116 Section- 102 Burden of proof is that obligation to adduce evidence to the satisfaction of the court in order to establish the existence or non-existence of a fact contended by a party. The provision as to the burden of proof is founded on the Rule ‘el incumbit probatio, qui dicit non qui negat’– the burden of proving a fact rests on the party who substantially assents of the affirmative issue and not upon the party who denies it; for a negative is usually incapable of proof’. This Rule is derived from the Roman Law and is supportable not only on the ground of fairness but also upon that of the greater practical difficulty which is involved in proving a negative than in proving an affirmative. This Rule is an ancient Rule founded on consideration of good sense and should not be departed from without strong reasons. Mohammad Azim & Ors Vs. Doly Islam & Ors 7 BLT (HCD)- 164 Section- 103 Onus – Presumption of genuineness of Ext. 4, the pattani register called for by the plaintiff. The plaintiff claimed that she took settlement of suit land by means a ‘Dhol fordi’ and Dakhila grarted by the Midnapur Zamindari Company Ltd. — The appellate court summarised its findings by way of stating that PW 1 and PW2 were not competent witnesses while the witnesses of the alleged settlement Kalipada Ghose and Korban Au were not cited as witnesses. There was no evidence that the tahsiider who allegedly gave the settlement had any authority to do so. The Dakhilas produced by the plaintiff were also not properly proved and the trial court wrongly exhibited the ‘fordi’ and Dakhilas as the basis of settlement as there was no proper proof of them — We may add that there is nothing on record to relate Ext.4 to the settlement claimed by the plaintiff. Agaib, the hukumnama and other documents of settlement in favour of the plaintiff were for the plaintiff to produce. In the absence of proof of existence of the said documents the defendants could not be supposed to be in a position to produce them. Thus the High Court Division had obviously given a wrong onus and drawn an incorrect presumption of genuineness of Ext. 4. [Paras-13 & 15] Bangladesh & Anr. Vs. Abdul Latif Khan & Ors. 7 BLT (AD)-208 Section-114 (g) In this case nowhere in the plaint it has stated that any of the attesting witnesses was present at the time of finalisation of talk for entering into the alleged agreement by the parties. The attesting witnesses appeared at the scene at a subsequent stage only at the time of execution of the alleged bainapatra, which is just a follow-up of the earlier proceedings. So, the earlier part of the proceedings remains totally unexplained for reasons best known to the plaintiff. The conspicuous absence of the plaintiff from the scene without any justifiable reason appears to be a mystery that has not been dissolved any cogent explanation and on that count the learned Court of appeal below was perfectly justified in drawing an averse presumption under section 114(g) of the Evidence Act. [Para- 13] Abdur Rahim Vs. Arfin Rahman & Ors 6 BLT (HCD)-51 Section-115 The respondent voluntarily wanted to go retirement as his juniors had obtained promotion. He clearly mentioned in his letter that he did not have the requisite qualifying service to opt for retirement, even then he sought permission for retirement upon special consideration. It was on such representation the order of release was passed. He is now stopped to challenge the release order. A party litigant cannot be permitted to assume in consistent positions in court, to play—fast and loose, to blow hot & cold, to approbate and reprobate to the detriment of his opponent. [Paras- 17 & 20] Bangladesh Pajatan Corporation & Ors. Vs. Md. Mafizur Rahrnan & Ors. 2 BLT (AD)-49 Section-115 Whether suit is riot barred by estoppel and waiver. The plaintiff was threatened with dispossession in a summary way by the defendants and it was under the instant threats of forcible dispossession he had to pray for year- ly lease of the suit property for saving his possession, albeit under protest and lost no time in coming to the court for vindication of his grievance—In the present case the plaintiff was always diligent in asserting his own title in the suit property and he never abandoned his claim of ownership over it nor the defendants were misled by his prayer for annual lease so as to change or alter their position to their detriment and the prayer for temporary lease being obviously under protest and without any prejudice to the rights of the parties, the doctrine of estoppel or waiver has no manner of application in the present case. [Paras- 12 & 13] Maran Mondal & Ors. Vs. A. D. C. (Rev). 6 BLT (HCD)-22 Section- 115 Pre-emptor is a co-sharer to the case jote by inheritance and the pre-emptee is a stranger to the case jote—In the instant case the pre-emptee of course, took such a plea of the principles of waiver, estoppel and acquiescence in his written objection and led some evidence. The pre-emptor, on the other hand, stoutly denied the said assertion and stated that the sale took place stealthily and beyond his knowledge without serving the statutory notice upon him and consequently he had no knowledge about it for quite a long time and he filed the pre-emption case promptly on obtaining the certified copy of the sale deed, following his knowledge about it— Held: Section 96 of the State Acquisition Tenancy Act being a beneficial legislation intended for the convenience of co-sharer of a holding as well as the convenience of tenants holding land contiguous to the land transferred, any provision of law barring the claim of pre-emption must be strictly construed, judged from that angle of vision the claim of waiver and acquiescence made by the pre-emptee must be rejected as being totally unsubstantiated. [Para- 11] M. M. Ahmed Sarker Vs. A. Khaleque & Ors. 6 BLT (HCD)-66 Section- 115 The appellant as a Government servant did not go for voluntary retirement and he was given compulsory retirement from service as a measure of punishment and as such the principle of estoppel is not attracted in the facts and circumstances of the case in as much as the appellant under compelling circumstances had to accept the financial benefits from the Government as contended by the appellants counsel. Held : We are of the opinion that acceptance of pensionary benefits in the facts and circumstances of the present case cannot be accepted as estoppel within the meaning of section 115 of the Evidence Act. [Para-8] Md. Jahangir Kabir Vs. Bangladesh 4 BLT(AD) -14 Section—115 Whether an attesting witness is bound by the contents of a document- There is no evidence in the instant case that Sheikh Babu had any knowledge about the contents of the document attested by him beyond his mere attestation. Therefore it cannot be said that Sheikh Babu was in any way bound by the transaction by the kabala in question. [Para—9] Amanatullah & Ors Vs. AU Mohammad Bhuiyan & Anr 6 BLT (AD)-1 Section- 135 When there are two sets of defendants to contest the suit and if one set of defendants goes to supports the claim of the plaintiffs wholly or in part, when in that case that set of defendants should be asked to cross-examine the witness of the plaintiff first as contended by the petitioner’s Advocate. Held: Admittedly there is nothing in the Code specifically as to which of the defendants should cross-examine any prosecution witness first and hence, a court is to fall back on section 135 of the Evidence Act which speaks of the discretion of the court to fix the order of production and examination of witnesses, of course such discretion should be exercised judicially and not arbitrarily in the facts and circumstances of each case. [Para-7] Shamsul Alam & Ors Vs Amirul Rahman Choudhury & Ors 3 BLT (HCD)-170 Section- 138 Examination of witnesses and their cross-examination The right of the adverse party to cross- examine a witness is never confined to the facts deposed to by the witness in his examination-in-chief but it extends to all matters relating to the suit. The adverse party has the right to cross-examine a witness on all facts relevant in the suit. Md. Khalilur Rahman Vs. Md. Asgar Ali 7 BLT (HCD)-352 Section- 138 Principle on Re-Examination It is well-settled that where is no ambiguity or where there is nothing to explain, questions which are to be put in re-examination with the sole object of giving a chance to the witness to undo the effect of a previous statement cannot be allowed. To be precise, re-examination shall not be allowed to destroy the effect of cross-examination. [Para-8] Ihteshanur Rahman Vs. Most. Masuda Khatun & Ors. 6 BLT (HCD)-47 Section- 167 Section 167 of the Evidence Act provides that if there is sufficient evidence to justi1r the decision then improper admission or rejection of the evidence will be no ground for a new trial. [Para- 14] Jamaluddin & Ors. Vs. Abdul Majid & Ors. 6 BLT (AD)-137. EVIDENCE ACT, 1872 Evidence Act [I of 1872] Section 3— Relationship of the witnesses with a party cannot be the sole ground of disbelieving their evidence unless contradiction and inherent infirmity are found in their evidence. Bachu Miah vs Samad Miah and others 50 DLR 564. Section 3— Partisan evidence is no doubt suspect, but cannot be discarded without finding any inherent infirmity and/or contradictions therein making the same unworthy of credence. In the context of prevailing deteriorating law and order situation in the society where open threat is given to the witnesses not to depose in support of the prosecution case the difficulty of the prosecution to bring independent witnesses, and the rising tendency of witnesses giving testimony in the Court to favour the accused giving different versions of the occurrence from the one made to the investigation officer at the time of investigation, for the above reasons, should be considered before finding fault with the prosecution for non-production of independent witnesses and relying on the evidence of the witnesses declared hostile by the prosecution without properly evaluating whatever evidence is available on record with a critical eye in the context of the respective cases of the parties. Dulal Miah @ Dulal @ Nurun Nabi vs Ruhul Amin and others 50 DLR 618 Section 3— Recognition by torch and hurricane at dead of night is doubtful. Abu Bakker and others vs State 49 DLR 480. Section 3— A witness has a tendency to exaggerate, embroider and also to implicate falsely some other person in addition to the real offender. The Court is to scan the evidence so as to come to a decision as to which part is acceptable and only in case of impossibility to separate the truth from falsehood, the Court will be justified in rejecting the evidence in toto. Masum and others vs State 49 DLR 349. Section 3— Evidence adduced by the prosecution being of a circumstantial nature and there being a missing link in the chain of circumstances, the prosecution failed to prove the guilt of the appellants beyond reasonable doubt. Nuru Miah and another vs State 49 DLR 97 Section 3— In the absence of the practice of registration of birth in the official register kept by any public authority, one cannot really be sure of the date of birth of any particular person. Ultimately, it falls on the court to determine the age of the victim girl based on the impression received, by her behaviour and appearance when brought before this court. Nurunnahar Khatun vs State 46 DLR 112. Section 3— Long delay in examining the material witnesses casts a doubt on the whole prosecution case. Syed Nazakat Hossain alias Ujjal vs State 48 DLR 139. Section 3— Circumstantial evidence —If the circumstances are not proved beyond all reasonable doubt by reliable and sufficient evidence and if at all proved but the same cumulatively do not lead to the inevitable conclusion or hypothesis of guilt of the accused’s alone but to any other reasonable hypothesis compatible with the innocence of the accused then it will be a case of no evidence and the accused should be given benefit of doubt. Bakul and others vs State 47 DLR 486. Section 3— Circumstantial evidence must be so strong as to eliminate the possibility of innocence of the accused person. State vs Balai Chandra Sarker 47 DLR 467. Section 3— Section 3— A witness for the prosecution does not become partisan per se nor an eye-witness can be disregarded merely because he has come to support the prosecution party. It was necessary to consider the whole evidence and then to assess the worth of the witnesses as a whole. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Section 3— Benefit of doubt to the accused would be available provided there is supportive evidence on record. For creating doubt or granting benefit of doubt, the evidence is to be such which may lead to such doubt. The law would fail to protect the community, if fanciful possibilities are admitted, thus, deflecting the course of justice. Al-Amin and 5 others vs State 51 DLR 154. Sections 3, 5 & 8— Ordinarily an accused has no obligation to account for the death for which he was placed on trial, but the murder having taken place while the accused was living with his deceased wife in the same house; he was under an obligation to explain how his wife had met with her death. Abul Kalam Mollah vs State 51 DLR 544 Sections 3 & 30— Confession of co-accused—The confession of an accused is no evidence against the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 3 & 30— It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found against him. Abul Hossain and others vs State 46 DLR 77. Sections 3 & 30— Since the confessional statement is not required to be taken on oath and taken in presence of a co-accused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused.. Mojibar vs State 51 DLR 507 Section 5— The Court ought not to have rejected the evidence of witnesses merely on the ground that they were not disinterested witnesses when their examination-in-chief could not be shaken in cross-examination by the defence. Samad Sikdar @ Somed Sikder vs State 50 DLR (AD) 24 Section 5— In the instant case where bitter enmity between the parties is admitted, some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. Abdul Kader alias Kadu and others vs State 49 DLR 577 Section 5— Where bitter enmity between the parties is admitted some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. Serajul Islam and others vs State 48 DLR 165. Section 5— Courts must seek corroboration before acting upon interested witnesses in a criminal trial. It is the Court’s solemn duty to assess the evidence legally not only to secure conviction but also to record acquittal. State vs Khalilur Rahman 48 DLR 184. Section 5— Section 5— An unreasonable delay in lodging the FIR inevitably gives rise to suspicion as to the trustworthiness or otherwise of the prosecution version of the case. State vs Tajul Islam 48 DLR 305. Section 5— When the alleged eye¬witnesses recognised the miscreants and disclosed their names to the informant before lodging the FIR and still then the informant does not mention their names in the FIR, the evidence of such witnesses must be kept out of consideration. State vs Tajul Islam 48 DLR 305. Section 5— If there are admixture of falsehood so that it becomes impossible for the courts to separate the grains of truth from mass of chaff, then such evidence of a witness must be rejected as a whole. Bazlu Talukder and others vs Deputy Commissioner Madaripur 48 DLR 509. Section 5— When the witness has animus against the accused her evidence cannot be relied on except with strong corroborative evidence. State vs Raisuddin and others 48 DLR 517. Section 8— Mere abscondence for some time without any guilty mind cannot be an incriminating circumstance against the accused to be relied upon for basing his conviction. Shahjahan vs State 46 DLR 575. Section 8— In a case where bitter enmity is admitted between the parties, it is required as a rule of prudence that there should be some corroboration of the evidence of the interested witness. Amir Hossain Dhali and other vs State 49 DLR 163 Section 8— As the condemned-accused absconded from the very beginning of the case, it appears that the learned Sessions Judge has been influenced for the same in awarding the capital sentence against him which is against the decided principle of law. From the conduct of a person for absconding after commission of the offence may sometimes be evidence to show that he was concerned with the offence. But it is usually a very small item in the evidence on which a conviction can be based. State vs Balai Chandra Sarker 47 DLR 467. Section 8—Motive is not imperative in every case of murder and even if motive is not established that does not throw the prosecution case overboard. Ashraf Ali Munshi vs State 48 DLR 590. Section 8— Abscondence—Though the fact that the accused absconded soon after the crime is not an evidence itself but it may lend weight to other evidence. Ashraf Ali Munshi vs State 48 DLR 590. Section 9— Long abscondence and non-submission to the process of the court speaks a volume against the accused persons and clearly suggest their involvement in the crime. Abscondence of the accused persons furnished corroboration of the prosecution case and evidence. Al-Amin and 5 others vs State 51 DLR 154 Section 9— The non-holding of the Test Identification Parade cannot affect the identification of the accused Shamim Hossain by the victims at the time of trial and the statement made by the witnesses are the legal and substantive evidence in the eye of law. Al-Amin and 5 others vs State 51 DLR 154 Section 24— Since the confessing prisoner neither filed any petition from jail nor directly filed any petition in Court nor made any oral allegation retracting from the confession his last moment retraction cannot be entertained. State vs Kamal Ahmed 49 DLR 381. Section 24— Extra-judicial confes¬sions are not usually considered with favour but it does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support his statement should not be believed. Syed Ahmed vs Abdul Khaleque and others 51 DLR 43. Section 30— There being no independent evidence except the confessional statement of appellant Farook Mahajan against the other accused appellants. The trial Court was wrong in finding all the appellants guilty. A retracted confession; like the one which is not retracted, may form the sole basis of conviction of the maker if the court believes it to be voluntary and true. But as against the co-accused, the evidentiary value of a retracted is practically nil and in the absence of strong independent evidence, it is totally useless. Faruque Mahajan and 4 (four) others vs State 49 DLR 47 Section 30— Confessional statement of one accused cannot be used as evidence against another co-accused unless there is any independent corroboration. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407 Section 30— The evidentiary value of a retracted confession is practically nil in the absence of strong independent evidence. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407 Section 30— The confession of a co-accused may be used only to lend assurance to other evidence on recorded in support of the guilt of the accused but the same cannot be used as a substantive evidence. Moslemuddin and another vs State 48 DLR 588. Section 30— No statement that contains self-exculpatory matter can amount to confessional statement if the exculpatory statement is of some fact which if proved would negative the offence confessed. The statement of accused Bachchu in his confessional statement as quoted are the admission and not confession as confession involved a voluntary acknowledgment of guilt. From the admission of accused Bachchu it cannot be said that he was aware that Khairul would be murdered by the other accused. He, therefore, cannot be said to have abetted that offence of murder. State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355 Section 30—If confession falls short of plenary acknowledgment of guilt it would not be a confession even though the statement contained some incriminating fact. J abed Ali (Md) alias Jabed Ali and others vs State 51 DLR 397 Sections 30 & 3—Confession of co-accused—The confession of an accused is no evidence agianst the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 30 & 3—It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found agianst him. Abul Hossain and others vs State 46 DLR 77. Sections 30 & 3—Since the confessional statement is not required to be taken on oath and taken in presence of a co-accused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused. Mojibar vs State 51 DLR 507. Section 45—The High Court Division rightly found that it was unsafe to convict the accused persons on the uncorroborated opinion of handwriting and fingerprint expert. State vs Raihan Ali Khandker and others 50 DLR (AD) 23. Section 45—The Court was not justified in convicting the accused without examination and comparison of the disputed signature on the back of the cheque by handwriting expert with his specimen signatures. Khadem Ali Akand (Md) vs State 49 DLR 441. Sections 45 & 73—The expert’s opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. Sections 57 & 60—The Appellate Division will set no example before the Courts to make reference to booklets of unknown origin. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Sections 73 & 45—The expert’s opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. Section 80—Non-examination of the Magistrate who conducted the TI parade renders the memorandum drawn by him inadmissible as it is not a judicial proceeding and that cannot be presumed genuine unless proved by the evidence. Mizanur Rahman (Md) vs State 49 DLR 83 Section 80—It is not always necessary that the Magistrate who recorded the confessional statement should be produced in Court as a witness. Section 80 provides that even without production of the Magistrate such statement may be taken into consideration and presumed to be genuine. Abul Khayer and 3 others vs State 46 DLR 212. Section 80—It dispenses with the necessity of a formal proof of a confession duly recorded by a Magistrate in accordance with the provisions of section 164 of the Code of Criminal Procedure. In such a case the examination of the recording Magistrate is not imperative. State vs Tajul Islam 48 DLR 305. Section 80—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466 Section 114(g)— Non-examination of independent witnesses, especially some of the close neighbours calls for a presumption against the prosecution. This view finds support from the case reported in 25 DLR 398. Kawsarun Nessa and another vs State 48 DLR 196. Sections 101 & 106— Since no special knowledge of the relevant fact as to committing of the crime could be attributed to the accused the provisions of sections 101 & 106 of the Evidence Act have no applicability in the case. Kawsarun Nessa and another vs State DLR 196. Sections 101 & 106— Section 106 does not relieve the prosecution of the duty to discharge its onus of proving a case as has been imposed by section 101 of the Evidence Act. Shahjahan Talukder @ Manik and others vs State 47 DLR 198. Section 114(g)— The principle laid down in the said case along with the provision of 114(g) of the Evidence Act is applicable in the present case where the prosecution suffers for non-examination of dis-interested and independent witnesses as though the occurrence is alleged to have taken place in the broad day light on the busy pathway. Alamgir Hossain (Md) alias Alamgir Hossain and another vs State 49 DLR 590. Section 114(g)— Withholding of charge-sheet witnesses—In a case where there is no eye-witness or circumstantial evidence, it is essential that next-door neighbours or those living near the place of occurrence be examined. Momin alias Md Mominul Huq vs State 48 DLR 282. Section 118— All persons, who can understand the questions put to them or can give rational answers to those questions are competent to testify before a court. It is not imperative for the court to subject a child witness to preliminary examination before reception of his evidence. The court may satisfy itself during the progress of the evidence in court that the witness is capable of understanding the questions put to him and of giving intelligible reply. In case of such satisfaction, the evidence becomes admissible. It is, desirable that the court should make an endorsement about its satisfaction. Seraj Miah vs State 49 DLR 192. Section 118—Though a child witness, PW 2 received injuries in the hands of the appellants when his father was done to death and the witness having testified about the factum of the occurrence and the same having not been shaken in cross-examination, the witness, though a child, should be believed in the facts of the case. Forkan alias Farhad and another vs State 47 DLR (AD) 149. Section 134—In order to convict an accused solely on the basis of a solitary witness like the police officer or the person who made the search and seizure, the Judge must ensure that such witness is disinterested and the evidence is unimpeachable and the other witnesses to the search who are alleged to have resiled from their previous stand are unworthy of credit. Talebur Rahman alias Taleb and 2 others vs State 49 DLR 167 Section 134—Even on the basis of a single witness a conviction can be maintained but such a witness must be fully reliable, above reproach and not shaken. Ashok Kumar Saha vs State 46 DLR 229. Section 134—Law does not require any particular number of witnesses to prove a case and conviction may be well-founded even on the testimony of a solitary witness provided his credibility is not shaken. Al-Amin and 5 others vs State 51 DLR 154 Section 134—It is true that under section 134 of the evidence Act conviction can be based on the Evidence of a single witness but the evidence of that witness must be of unimpeachable character. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466 Section 145—Statements made under section 161 CrPC are not substantive evidence. Such statements can only be utilized under section 162 CrPC to contradict the witness in the manner provided by section 145 of the Evidence Act. Abdus Subhan vs State 46 DLR 387. Sections 145 & 155—The trial Court illegally referred to and considered the statements of witnesses recorded under section 161 Criminal Procedure Code, which could only be used to contradict or corroborate the witness. Abu Bakker and others vs State 49 DLR 480. Sections 145 & 155—Statement of a person recorded under section 164 CrPC is not a substantive piece of evidence of the fact stated therein. Such statements recorded by a Magistrate under section 164 CrPC can only be used for contradicting the maker of it under sections 145 and 155 of the Evidence Act or for the purpose of corroborating him under section 157 of the Act. Seraj Miah vs State 49 DLR 192 Section 146—Mere relationship of the witness should not be a ground for discarding his evidence unless he is found to be biased and lying. Sarwardy Kamal and others vs State 48 DLR 61. Section 154—Even if there is some discrepancy in the evidence of a witness with regard to some part of the case, for that his entire evidence on the remaining part should not be discarded. Abdus Sukur Mia vs State 48 DLR 228. Sections 154 & 142—Court may in its discretion permit a party to put questions to its witness which are usually put in cross-examination by the adverse party. Babul vs State 50 DLR 490 Sections 154 & 155—The evidence of a witness is not to be rejected either in whole or in part simply because of being cross-examined by the party calling him, but the whole of the evidence as far as it affects both parties, favourable or unfavourable, must be taken into account and assessed like any other evidence. Amir Hossain Dhali and others vs State 49 DLR 163 Section 156—The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of a victim of sex crime alone to convict an accused where her testimony inspires confidence and is found to be reliable. One must remain alive to the fact that in a case of rape no self respecting woman especially a college girl would come forward in a court just to make a humiliating statement against her honour and dignity such as involved in the commission of rape upon her. The court must not cling to fossil formula and insist a corroborative testimony, even if, taken as a whole the case spoken to by victims of sex crimes strikes a judicial mind as probable Judicial response to Human Rights cannot be blunted by legal bigotry. Al-Amin and 5 others vs State 51 DLR 154. EVIDENCE ACT, 1872 EVIDENCE ACT, 1872 (I OF 1872) Section—31 This section deals with the effect of admissions with regard to their conclusiveness. It means that admissions are not conclusive proof of the matters admitted and the party is at liberty to prove that these were made under mistake of law or fact or that these were untrue or were made under threat, inducement or fraud. Sonali Bank Vs. Mr. Hare Krishna Das and other, 16 BLD (HCD) 159. Section—33 Market Value of the Vessel The market value of the vessel of the plaintiff was determined by the Admiralty Judge on the basis of Ext. 25 series which is the deposition of seven witnesses (employees of the plaintiffs vessel) who appeared before the Magistrate, 1st Class, Marine Court, Dhaka. It is unfortunate that deposition of those persons who deposed in a criminal proceeding before the Marine Court was relied upon by the Admiralty Judge. Under section 33 of the Evidence Act that proceeding was not between the same parties. As a matter of fact, Ext. 25 series is not admissible in this admiralty proceeding and Ext. 25 series cannot be legally accepted as the basis for determining the market value of the vessel and consequently the passing of the decree of Tk. 80,10,000/- is without any legal evidence and the same cannot be awarded infavour of the plaintiff as has been done by the learned Admiralty Judge. Bangladesh Inland Water Transport Corporation Vs Al-Falah Shipping Lines Ltd. and others, 17 BLD (AD) 136. Section—44 Any party to the suit or any proceeding may challenge the judgment or order passed by a Court on the ground of want of jurisdiction or on the ground of fraud and collusion. The party seeking to establish fraud must make specific allegations as to the nature of the fraud and must prove fraud by cogent evidence, In fine, fraud must be specifically pleaded and proved. Osman Gani Talukder alias Sujat Ali Talukder Vs. Md. Osman Ali Mondal, 16 BLD (HCD)165. Sections—45, 47, 67 and 73 The proof of genuineness of a document is of the authorship of the document and is proof of a fact like that of any other fact. The opinion of handwriting expect should be received with great caution and it is unsafe to base a decision purely on experts opinion without sufficient corroboration. In the instant case, taking opinion of the handwriting expert on comparing the siquantive and thumb impressions of the plaintiffs in Court on their physical appearance is not necessary. Plaint or written statement after it has been filed in court and registered becomes a public document and thus the court is competent to form its opinion on a comparison of the handwritings and signatures appearing on the materials on record with the signatures appearing on the disputed solenama. Sreemati Hajari Roy and others v. Arun Kumar Singha and others, 22 BLD (HCD) 169. Ref: Gura Meah Shah and others v. Zahir Ahmed and others, 4BLD225. Sections—45 and 73 Comparison of disputed signature /LTI cannot be done by the expert with the said registered document which is not admitted or proved to the satisfaction of the Court. Dinesh Chandra Deb Vs Dulal Chandra Karmaker & others, 21BLD (HCD) 461. Ref: State (Delhi Administration) Vs. Pali Ram, A1R1979(SC)14; Krushna Chandra Vs. Commissioner of Endowment, A1R1976 Orissa 52; Sreemuthy Sarojini Dassi Vs. Han Das Ghose, 26 CWN 113—cited Section—59 Section—63 Secondary evidence The production of the certified copy of a sale- deed does not by itself warrant the presumption of due execution of the original document. A party producing the secondary evidence of a document is not relieved of the duty of proving the execution of the original. Even in a case where a document has been exhibited without objection the Court is to be satisfied as to the execution of the document. Soya Rani Guha alias Soya Rani Gupta Vs. Abdul Awal Mia and others, 14 BLD (AD) 257. Section—65 Secondary evidence is not admissible in evidence unless there is proof of execution of the original and its subsequent loss or destruction. In the case of a Hiba-bil–Ewaj deed, actual delivery of possession is not necessary, payment of consideration to the donor and the bonafide intention of the donor to divest himself in present of the property are enough for a valid transfer under the deed of Hibabil-Ewaj. Abdur Razzak Vs. Ahila Khatun & Ors, 13 BLD (HCD) 610. Ref: Meherchand Banu Vs. Salimullaha & others, 22 DLR (HC) 316, 6 DLR (P.C) 598-cited. Section—73 Section 73 of the Act clearly empowers the Court to itself examine the disputed signatures to form its own opinion thereon, independent of the opinion of the hand-writing expert. The Court is never bound to obtain the opinion of a hand writing expert nor is such opinion binding upon it. Moreover, the art of calligraphy is yet to attain any decree of accuracy and precision so that the Court can place explicit reliance on it. Sree Naru Gopal Roy Vs Parimal Rani Roy and others, 21 BLD (HCD) 282. Section—73 Comparison of signature or writing by the Court Under Section 73 of the Evidence Act the Court is the final expert with authority to compare itself any disputed signature or writing or thumb impression to come to its own conclusion without referring the matter to an expert. The Court being the final authority to decide the matter can override or disregard the opinion of a Hand-Writing Expert. Hachina Begum Vs. Mosammat Mahfuza Akhter, 16 BLD (HCD) 374. Section—73 While it is competent on the part of a Judge to compare disputed signatures or wt ings with admitted signatures or writings for himself it is usually unsafe to rely entirely on such comparison without expert advice or scientific examination. Sree Pratik Bandhu Roy Vs. Sree Alok Bandhu Roy, 16 BLD (HCD) 445. Ref: AIR 1962 (Andra) 178; AIR 1928 (PC)277; AIR 1961 (Cal) 491—Cited. Sections—91 and 92 Sections—91 and 92 Section— 92 Proviso (2) Section—95 Section 95 of the Act provides that when language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense. In the instant case the transaction vide registered sale deed dated 14.7.1978 was absolutely a malafide one in order to deprive and defraud the defendant-petitioner. So, the person committed fraud should not be allowed to enjoy the fruits of his own fraud and as such the plaintiffs had not acquired any right and title in the suit property out of a fraudulent transaction by a deed of sale. Md. Abdur Rahman Mia Vs. Md. Saber Au Mia, 19 BLD (HCD) 342. Ref: 57 I.C. page 569; 84 I.C.137—Cited Section—103 When the plaintiff fails to prove the execution of his bainapatra by the defendant by examining the scribe and other independent attesting witnesses and fails to prove that he was put to physical possession of the suit land in pursuance of the agreement for sale, the execution of the bainapatra cannot be said to have been duly proved. Under such circumstances he is not entitled to get a decree for specific performance of the contract. Kartick Chandra Das Vs. Md. Abul Hossain Bhuiyan and another, 14 BLD (HCD) 585. Section—103 Burden of proof as to particular fact A statement in the plaint or in the written statement is no evidence in the eye of law unless it is proved by examining a witness on oath. In the instant suit the defendant claimed that the original owners had left this country before 1965 and the suit property became enemy property by operation of law. The onus was upon the defendant to prove that fact either by examining any witness or by producing any reliable documentary evidence establishing that the real owners had left this country before 1965. In the absence of such evidence the property in question cannot be treated as enemy property or vested property. Sreejukta Haladhar Karmakar Vs. Bangladesh, 16 BLD (HCD) 519. Section—106 Burden of proving fact especially within the knowledge of any person—Alibi in a quasi-criminal proceeding Even in a quasi-criminal proceeding if a plea of alibi is taken the burden to prove it is on the person who takes such a plea, because that fact is within his special knowledge. The petitioner had opportunities to prove his absence from the country since 1982 at the trial Court, the lower appellate Court and the High Court Division but he did not avail of the opportunities. Even before the Appellate Division the petitioner failed to produce any proof in support of his plea of alibi. Under such cir cumstances the petition merits no consideration. Md. Abdul Tahid alias Tahid ulla V. M Kadaris Ali and ors., 16 BLD (HCD) 248. Section—114(g) Non-Production of the requisition slip by the prosecution leads to an adverse presumption against it under section 114 (g) of the Evidence Act that if the slip was produced it would show that the Director himself obtained the blank Accession Register and, thereafter, ‘gave the same to Accused Respondent No.2 for preparation of a neo Register Expunction of observations—In the facts and circumstances of the case and evidence on record, the observations made by the learned Special Judge against the informant in the judgment under appeal are, in no way, unjustified, the same call for no interference. The Solicitor, Government of Bangladesh. Vs. Feroz Mahmud and another, 14 BLD (HCD) 160. Section—114(g) Wireless Telegraphy Act, 1933, Section—5 When an action is taken or decision is taken by maintaining a file, that file must be produced before the court to show that the act was done properly. In the instant case, the relevant file has been withheld. Hence, presumption under section 114(g) of the Act shall apply. Inspite of repeated orders, the file was not produced by the respondents with whom those were lying. In such circumstances, the Court is constrained to draws an adverse presumption under section 114(g) of the Act. Chowdhury Mohmood Hossain v. Bangladesh and others, 22 BLD (HCD) 459. Section—115 Estoppel When on his own volition, the Respondent induced the Appellate to allow him to retire from service, which is akin to and in substance an order of release, the Respondent now cannot be allowed to say that his order of release is illegal. He cannot be allowed to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent. Bangladesh Parjatan Corporation, represented by its Chairman and others Vs. Mr. Mofizur Rahman and another, 14 BLD (AD) 61. Section—115 Estoppel To bring a case within the scope of estoppel as defined in section 115 of the Evidence Act, the person claiming the benefit must show that he was not aware of the true state of things. If he had the means of knowledge about the real state of affairs, estoppel will not operate. Sarafat Hossain Vs. Dr. Islam Uddin, 14 BLD (HCD) 253. Section—115 State Acquisition and Tenancy Act, 1950, Section—96 In the absence of conclusive evidence of waiver to operate against him, the pre-emptor cannot be estopped from exercising his right of preemption. Md. Ajmat Ali Vs. Jamaluddin and others, 14 BLD (HCD) 563. Ref: Akhlasur Rahman and others Vs. Shafur-ullah and ors, 14 BLD(AD)20—Cited. Section—115 Estoppel A party cannot blow hot and cold in his stand before a Court of law. He is not entitled to approbate and reprobate in the same breadth. After having participated in the election and being defeated, the defendant cannot disturb the functioning of the elected manager without getting the election of the latter declared illegal by a competent Court. Anwar Hossain Vs. Abdul Gafur and others, 14 BLD (HCD) 260. Ref: 42 DLR 498; 5 B.C.R. (AD) 85; 35 DLR(AD) 182; 10 BLD 17; (1947) A.C. 46 (PC) 56; (1940) A.C. 412; (1940) All. E.R. 425; Halsbury’s Laws of England, 3rd Edition, Vol. 15 Pagel68; 5BLD(AD) 54-Cited Section—115 Plaintiff having proved the contract, payment of full consideration and delivery of possession in part performance of the contract, the Railways or the Government is estopped from challenging the validity of the contract concluded with the plaintiff. Pronab Kumar Chakraborty and Others Vs. The Govt. of the Peoples Republic of Bangladesh and others, 14 BLD (HCD) 2. Section—115 Bangladesh Service Rules, Rule—9 Admittedly, the plaintiff was granted LPR on 31 May, 1990, but he gave representation to the Government for reconsideration of his age which was rejected on 30 August, 1990. Thereupon the plaintiff received all his dues upon retirement in September 1991. It is after that he brought the suit on 2 October 1991 challenging the memo dated 23 December 1989. These facts clearly show that the plaintiff had acquiesced in the decision taken by the Corporation about the date of his retirement and waived his claim for extension of service. Rule 9 of the Service Rules sets a bar to a change of the date of birth of the incumbent as recorded at the time of appointment. Bangladesh Agricultural Development Corporation (BADC) Vs Abdul Barek Dewan being dead his heirs: Bali Begum and others, 19 BLD (AD) 106. Ref: 36 DLR (AD)69: BCR1984(AD) 51; 1990(3) SCC 685(705) and (1972) AC1027— Cited. Section—1 15 Transfer of Property Act, 1882, Section—43 In order to find an estoppel, the representation i.e. a party’s declaration, act or omission must be clear, definite, unambiguous and unequivocal. The real state of things were known to both the parties namely the transferor and the transferees of the kabala and there is no proof of erroneous misrepresentation and as such there is hardly any scope of the operation of section 43 of Transfer of Property Act. Ali Akbar Khan Vs Gurudas Mondal and others, 19 BLD (HCD) 122. Ref: 1921 Cal. L. 3. Vol. 33 page 522; 6PLR 181, 43 DLR(AD) 87; 42 DLR 434- Cited. Section—115 Estoppel The action of the Local Revenue Officer in accepting the plaintiff and his successive predecessors-in-interest as tenants in respect of the suit property under the Government is binding on the Vested Property Department and the latter cannot claim the suit property as a vested property. The action of the A.D.C, (Revenue), who is the local administrative head of both the revenue department and the vested property department, allowed himself to be indulged in oppressive litigations and this was strongly deprecated. Additional Deputy Commissioner (Revenue), Narayanganj Vs A.K. M.Latiful Karim and others, 17 BLD (HCD) 249. Ref: (1949) 1 K.B. 227—Cited. Section—115 Estoppel To establish a case of estoppel or waiver it is essential to show that the party alleged to have waived his right acted in such a manner as to lead the other party to believe and act that such rights have been enforced. The essence of the act of estoppel lies in the fact that one party by his conduct has led the other party to alter his position. A case of estoppel has not been made out in the instant case. Md. Jahangir Kabir Vs Bangladesh, 16 BLD (AD) 85. Ref: 45 DLR 112; 42 DLR (AD) 189; A.I.R. 1984 (SC) 921; 18 DLR (SC) 354; Indian Appeals (189 1-92) Vol. XIX, page 203; Ambur Nair V.Kelu Nair, AIR 1933(PC)l67. Section—116 Estoppel of tenant and licensee Section 116 of the Evidence Act provides that neither a tenant/licensee nor anyone claiming through him can deny the title of the landlord! licensor after admitting his title at the beginning of the tenancy. Smriti Ranjan Das and another Vs. Bifan Behari Roy and anr, 14 BLD (HCD) 573. Ref: Ramdashi Paul Vs. Sarabala Dashya and others, 14DLR 810; Joykumar Datta and others Vs Sitanath Datta, 4 DLR 401—Cited. Section—138 Order of examination of witnesses— Examination-in-chief, cross-examination and re-examination Section 138 of the Evidence Act provides the order in which witnesses are to be examined, cross-examined, and, with the permission of the Court, re-examined. After a witness is sworn or affirmed, he is first examined by the party calling him. This is known as examination-in-chief, the object of which is to elicit from the witness all material facts within his knowledge relating to the party’s case. The adverse party has then the right to examine the witness and this is called cross- examination, the object of which is two-fold: to weaken, qualify or destroy the case of the opponent and to establish the party’s own case by impeaching the veracity, accuracy, credibility and the general value of the evidence given in examination-in-chief. This exercise has justly been described by the jurists as one of the principal and most efficacious tests for deciphering the truth. Where there is no ambiguity or there is nothing to explain in the statement of a witness, the prayer for re-examination with the sole object of giving a chance to the witness to undo the effect of cross-examination is not contemplated in law. Ihteshamur Rahman Vs. Most. Masuda Khatun and others, 18 BLD (HCD) 134. EVIDENCE ACT, 1872 Evidence Act, 1872 Section 8 –Ascension by itself is not an evidence of guilt of an accused Code of Criminal Procedure, 1898 Section 164 – Confessional statement of accused recorded after being produced from prolonged police custody held inadmissible as being not true and voluntary Penal Code, 1860 Section 396 – Offence of dacoity – Ingredients constituting the offence must be present. In the instant case the 8(eight) condemned prisoners were sentenced to death by the trial court. In the FIR 3(three) accused are named. The learned judge of the High Court Division held the confessional statement of accused involuntary and not true by reason of being recorded from prolonged police custody and the recognition of the dacoits in the light of torch improbable and accordingly acquitted all the condemned prisoners. State Vs. Munia alias Monia and 7 others 15 MLR (2010) (HC) 266. Evidence Act, 1872 Section 30 – Confessional statement of one accused cannot be the basis of conviction of non-confessing accused without corroborative evidence. Law is well settled that in a joint trial of a confessing accused and non-confessing accused for the same offence, the confession of a co-accused may be taken into consideration against non-confessing accused only along with for substantive evidance for the purpose of finding him guilty of the offence. Abdus Salam Mollah V The State 13 MLR (2008) (AD) 268. Evidence Act, 1872– Section 34 –Conviction can be based on one witness – There is no legal bar convicting an accused on the basis of evidence given by police personnel when the same appears to be trustworthy. Again conviction can well be based on the evidence of solitary witness if found reliable. Bayezid Hossain @ Bijoy Vs The State 11 MLR (2006) (HC) 263. Evidence Act, 1872 Section 114(g)– Non-examination of material witness and the adverse presumption against the genuineness of the prosecution case Convict-petitioner was convicted for the offence under section 19(3) of the Narcotics Control Act, 1990 and conviction and sentence were also affirmed by the Sessions judge in Appeal. The learned judge of the High Court Division set aside the order of conviction and sentence in view of absence of any evidence on record showing that the land wherefrom the ganja plants were recovered actually belongs to the convict-petitioner. Shasher Ali Vs. The State 12 MLR (2007) (HC) 38. Evidence Act, 1872 Section 114(g)– Non examination of material witness cited in the chargesheet raises adverse presumption. Conviction based only on the evidence of police personnel held unsafe. In the instant case the convict appellants were convicted and septet iced only on the evidence of police personnel. No independent witnesses were examined. Moreover the evidences were contradictory. The learned judges held the charge against the convicted appelants not proved beyond doubt and acquitted them. Uzzal and Golarn Rasul alias Mamun Vs. The State 15 MLR (2010) (HC) 311. Evidence Act, 1872 Section 114(g)– Adverse presumption for non-examination of material witness Onus of proving the charge against the accused beyond all reasonable doubt entirely lies upon the prosecution. Non-examination of material witness without satisfactory explanation raises adverse presumption against the prosecution case resulting in the acquittal of the convict-appellant on benefit of doubt. Linckon Dewan @ Dewan Nurul Huda Vs. The State 11 MLR (2006) (HC) 432. Evidence Act, 1872 Section 118–Child witness is competent when found capable of proper understanding. Telephonic conversation recorded leading to the arrest of the accused and recovery of the victim supported by ocular evidence can well form the basis of conviction. The conviction and sentence based on consistent and reliable evidence on record to the exclusion of any reasonable doubt affirmed by the High Court Division are held by the apex court perfectly justified. Jasimuddin and another Vs. The State 11 MLR (2006) (AD) 162. Evidence Act, 1872 Section 134 – No particular number of witness is required to prove the charge. Conviction and sentence may be based on evidence of a solitary eye witness. Section 27 –Statement of an accused in police custody leading to the recovery of incriminating material is admissible in evidence. Alibi taken must be established by the accused by producing convincing evidence. Code of Criminal Procedure, 1898 Section 164- Confessional statement of an accused has to be recorded in accordance with the provisions of section 364 of Cr.P.C. Abscission of an accused from immediately after the occurrence may be a circumstance pointing at the guilt of the accused. Sentence must be proportionate to the nature and gravity of the offence committed. In order to secure conviction of an accused the prosecution must prove the charge against him by consistent and reliable evidence beyond all reasonable doubt. Evidence of a solitary eye witness can be the basis of conviction. Confessional statement though not binding upon other co-accused may be considered as corroborative evidence against the other co accused and along with other evidence can form the basis of conviction. State Vs. Gaush Mea @ Rana (Md.) and others 11 MLR (2006) (HC) 417. EVIDENCE ACT, 1872 EVIDENCE ACT, 1872 (I OF 1872) Section—3 Video Cassette—Video cassette whether is a document and whether the same is admissible in evidence — Video Cassette is a document within the meaning of the Evidence Act and is accordingly admissible in evidence if otherwise relevant in course of a trial or proceeding — when sound recorded on a tape is admissible in evidence, the record of sound and picture should equally be admissible in evidence. Mrs. Khaleda Akhtar Vs. The State; 5BLD (HCD) 303 Ref. AIR. 1964 (SC) 72; AIR. 1968 (SC) 147; PLD l976 (SC) 57 (69) Cited. Section—8 Non-payment of rent whether relevant —Non-payment of rent alone will not extinguish or disprove a tenancy but when it is a question of the very existence of the status of a tenant, payment of rent would be relevant as the subsequent of the parties concerned. Sahabuddin Vs. Saluddin Talukder and others; 4BLD (HCD) 291 Section—13 Relevance of previous judgment — When a judgment, though not inter parties, may be admissible — Ordinarily a judgment cannot be used as evidence against a person who is a stranger thereto — But the judgment in a prior suit together with the plaint and other steps taken in connection therewith is evidence of an assertion by the holder of the judgment of the right which he claims to acquire and is then admissible in evidence of his right. Hazi Waziullah alias Waziullah Miah and others Vs. The Additional Deputy Commissioner (Revenue), Noakhali and Assistant Custodian, Vested and Non-Resident Property and others; 9BLD (AD)135 Ref. 21 DLR(SC)94; 2 C.W.N. 501; 58 Indian Appeals 125; A.I.R.1937(PC)69— Cited. Section—7 Admission— Value of admission made in the plaint of a previous suit which was withdrawn — In our law of evidence an admission made by a party in a plaint is admissible as evidence against him in other actions as well but such admission cannot be regarded as conclusive proof and it is open to the party to show that it is untrue. Abdul Kader Khan being dead his heirs All Akbar Khan and others Vs. Basek Khan being dead his heirs Shaju Bia and others; 8BLD(AD)22 Ref. A.I.R. 1967 (SC) 341; AiR. 1968 (Cal)550; (1952) 1 Macq 212: 8DLR3I I Cited. Section—20 Admission between the parties made in another proceeding — Such admission whether binds a party in a subsequent proceeding – Respondent’s admission that he was a tenant under the appellant estops him from denying appellant’s title in the suit premises — Admission by way of statements made in documents certified to be true copies by an authorised officer of the Government are admissible in evidence. Hajee Abdus Sattar Vs. Mahiuddin and others; 6BLD (AD) 224 Section—21 Admissibility of previous statement A party’s previous statement regarding a fact in issue is relevant and can be used against him if he has not appeared in the witness box at all — Even if the party appearing in the witness box is not confronted with his contrary previous admission, his such previous admission, if duly proved is admissible. Sultan Ahmed and others Vs. Mohammad Islam and others; 4BLD (HCD) 183 Ref: A.I.R. 1946 (Lah) 65 (PB); AIR. l957(AIl) 1(FB); AIR. 1966(SC)402 — Cited. Section—23 Admission made by a party in a letter written “without prejudice” — Admissibility of — The letter written by the appellant cannot be used to determine the extent of its liability, but in so far as it shows the relationship between the appellant and the respondent No. I as debtor and creditor and that they tried to settle the account, the letter can be taken into consideration. M/s. Haque Brothers (Carbide) Ltd. Vs. Bangladesh Shilpa Rin Sangstha and others; 5BLD (AD) 102 Ref. (1967) 72 C.W.N. 1 — Cited. Section—35 Entry in School Register — Its admissibility in evidence — Entry in School Register, Admit Cards and Board’s Certificate is that such Registers, Cards and Certificates are public documents, and are admissible in evidence, but the evidentiary value to be attached to the entries will vary from case to case. Abul Hashem (Bulbul) Vs. Mobarakuddin Mahmud; 6BLD (HD) 25O Ref. I.L.R. 14 (Lahore) 473; A.I.R. 1965 (SC)282 — Cited. Section—43 Findings of the Criminal Court are not binding on the Civil Courts — An order under section 145 Cr. P.C. cannot be treated as substantive evidence of possession — A judgment of acquittal in a criminal case only decides that the accused has not been found guilty of the offence with which he had been charged but the opinion and the conclusion expressed in the judgment are not admissible in evidence in civil Courts. Akhtar Hossain Sharif and others Vs. Munshi Akkas Flossain and others; 3BLD (AD)334 Section—43 Relevance of previous judgment — When a judgment, though not inter parties, may be admissible — Ordinarily a judgment cannot be used as evidence against a person who is a stranger thereto — But the judgment in a prior suit together with the plaint-and other steps taken in connection there with is evidence of an assertion by the holder of the judgment of the right which he claims to acquire and is then admissible in evidence of his right. Hazi Waziullah alias Waziullah Miah and others Vs. The Additional Deputy Commissioner (Revenue), Noakhali and Assistant Custodian, Vested and Non-Resident Property and others; 9BLD(AD)135 Ref.2IDLR (SC) 94; 2 C.W.N 501; 58 Indian Appeals 125: A.I.R. 1937(PC)69 — Cited. Section—43 Findings in the judgment of a criminal case — Whether can be relied upon in a subsequent civil suit between the parties — The findings and decision in a criminal case relating to the subject matter of the suit Scan n be relied upon — the fact that the accused was acquitted in a criminal case can be relied but not the opinion or conclusion expressed in such judgment. Md. Arshad Ali Vs. Abed Ali and other, 4BLD (HCD)150 Section—44 Benamdar — Whether a decree against a benamdar is binding on the real owner — Whether real owner can agitate in another suit that the decree obtained against his benamdar was fraudulent and not binding on him — It is now a settled principle of law that a decree on the ostensible owner is binding on the real owner — The plaintiff obtained the decree against the benandar fraudulently knowing full well that the real owner defendant was in possession — When a decree is obtained by the plaintiff practicing fraud it is not necessary to file a separate suit for avoiding such decree but the said decree can be impugned in another suit by such person aggrieved by such fraudulent decree — The real owner can avoid the transfer by his benamdar provided that no reasonable care was taken by the transferee in getting the transfer from the Benamdar — Transfer of property Act (IV of 1882) S.41. – Sultan Ahmed Vs. Md. Waziullah and others; 7BLD(HCD) 235 Ref. 24 DLR 63 — Cited. Section—44 Plea of Fraud—Under section 44 of the Evidence Act, whether it is competent for a party to a suit or proceeding to show that a document or a decree proved against him was obtained by fraud without having it set aside. Under section 44 of the Evidence Act it is competent for a party to a suit or other pro-ceeding to show in it that a document or a decree which has been proved against him by his adversary in that suit was obtained by fraud without having it set aside — When subsisting judgment, order or decree is set up by one party as a bar to the claim of the other, the latter can show that the judgment, order or decree was delivered by a Court without jurisdiction or was obtained by fraud, collusion and it is not necessary for him to have it previously set aside by a separate suit — A party to a proceeding is never disabled from showing that a document has been obtained by the adverse party by resorting to fraud. Abdul Gani Khan Vs. Shamser Ali and others; 12BLD (HCD) 90 Section—45 Expert’s opinion — Value of — Opinion of an expert, such as a hand-writing expert, is only a relevant fact — The Court will certainly consider the expert’s opinion but it is the Court which alone will come to its own conclusion regarding the matter — An expert’s opinion, particularly that of a handwriting expert, is always received with great caution. Ekias Khan and others Vs. Prajesh Chandra Das and others, 7BLD (AD) 142 Section—45 Assessment or evaluation of the evidence of hand writing expert — Requirements of law as to plaintiff’s obligation to prove his own case — Court to come to findings on assessment of the materials on record. Evidence of an expert witness is of very weak nature — The evidence and the opinion of the expert deserves consideration like any other evidence but such evidence has to be received with great caution — In assessing or evaluating the evidence of a handwriting expert on the question of genuineness of a signature, the following facts must be kept in view : (1) very few people sign in the same manner on all occasions. (2) expert opinion of the genuineness of the signature should be received with great caution, especially in a case when there is positive evidence of persons who saw a person sign. (3) all the test evidence by the expert in the matter of comparison of hand writing and signature is merely tentative in character. (4) Opinion is weak evidence. (ii) Law requires that the plaintiff must prove his own case to the hilt by cogent and sufficient evidence—He cannot succeed merely on the weakness of the defence — Disbelief of the defence case ipso facto does not make the plaintiff’s case believable. (iii) The Court is required to come to a finding on assessment of the evidence on record that the plaintiff has been able to prove his case — The plaintiff must prove his case with sufficient evidence to obtain even an expaite decree in his favour. Sheikh Salimuddin Vs. Ataur Raharnn and others; 11BLD (HCD)386 Ref. 7 BLD (AD)142; IODLR(PC)l; 25 DLR(SC)90; 3 BLD(AD)225 — Cited. Sections—45, 47, 67 and 73 Mode of proof of hand-writing or signature—It is well-known that the Evidence Act has provided for the following 4 modes for proving hand-writing or signature of a person in any document namely: (1.) By proof of the signature or handwriting of the person alleged to have signed or written the document by evidence vide section 67 of the Evidence Act. (2.) By the opinion of an expert who can examine and compare the handwriting or signature in a scientific process vide section 45 as the Evidence Act. (3.) By a witness who is acquainted with the handwriting or signature of the person by whom the same is supposed to be written and signed, vide section 47 of the Evidence Act. (4.) Also by comparison of the signature or handwriting of the person with his other admitted and proved handwriting on signature by the Court it self vide section 73 of the Act. In the instant case when it is the duty of the plaintiffs to prove the identity and genuineness of the signature of the petitioner in thealleged document, the plaintiffs may avail of any of the methods as enumerated above — He or they cannot be forced by the defendants to resort to any particular method of proving the alleged signature. Shree Dulal Benerfee alias Moni Vs. Shree Sharat Chandra Pal and another; 12BLD (HCD) 277 Sections—56, 78(6) and 85 Power of attorney authentic in foreign city—Power of attorney executed and authenticated by a Magistrate or Notary Public in a foreign country—Whether could be acted upon as a valid document in Bangladesh. If a notarial act is done in a foreign country by a foreign notary and there is reciprocal arrangement between Bangladesh and that foreign country, then by reference to section 14 of Notaries Ordinance and section 33of the Registration Act, those Notarial acts will be valid and the power of attorney admissible in Bangladesh. Nurunizessa and others Vs. Babar Ali Bepari and others; 1BLD (AD) 86 Section—64 Admissibility of newspaper report — Probative nature of such report — Although a newspaper is admissible in evidence without formal proof, yet the paper ipso facto is no proof of its contents — The newspaper cannot be treated as proof of the facts. Nurul Islam and others Vs. The State, 7BLD (HCD) 193 Ref. A.I.R. 1925 (Lahore) 299: A.I.R. 1961 (Pun) 215; AIR. 1951(SC)1376 — Cited. Section—57 Judicial Notice of a period of general dislocation — Momentous changes took place when Benches of the High Court Division were established outside the capital — the cases arising from Barisal were initially sent to the Jessore Bench and then after the establishment of the Barisal Bench, to Barisal — It was a period of general dislocation of which judicial notice should be taken. Mvi. Md. Keramat Ali and another Vs. Syed Munsur Ali and others; 11BLDAD97 Sections—64 and 65 Best evidence — The rule of evidence is that the best evidence which the case in its nature is susceptible should always be given — Primary evidence is the best evidence as it is that kind of proof which in the eye of law affords the greatest certainty of facts in question — Unless it is shown that the production of this evidence is out of the party’s power, no other proof of fact is generally admitted — Overall testimony to prove shortage of stay and stationery is inadmissible in evidence when documentary evidence to prove the same was available and purposely withheld. S.K. Abdul Majid Vs. The State; 7BLD (HCD) 413 Sections—65 and 66 Admissibility of certified copy of an application — Original called for from the custody of the person granting the copy bi the original not produced — In view of clauses (a) (c) of sections 65 and 66 of the Evidence Act the certified copy of the application is admissible in evidence. Indus Ali and others Vs. Abdul Jabbar Mia, 3BLD (HCD) 258 Section—65 Secondary evidence — Question of admissibility without formal proof — Though no objection was raised when the secondary evidence in the Photostat copy was produced, the party producing it was not exempt from explaining why its original was not produced — If the original is not available, the reason for non-availability must be given. Hazi Waziullah and others Vs. Additionial Deputy Commissionier, Noakhali and others; 9BLD (AD)135 Ref. 20 DLR (SC)205; — Cited. Section—65 Award in respect of a property — When cannot be considered — The original of the alleged award having not been filed in the Court the true copy of the alleged award cannot be considered. Chan Jun Talukder and another Vs. Ching Neshazy Magni and others, 9BLD (HCD)10 Sections—67 and 68 Presumption of genuineness of a registered kabala — In the absence of proof of its due execution a registered kabala by itself does not raise any presumption of its genuineness. Abdul Malek Sarkar Vs. Govt. of Bangladesh; 3BLD(HCD)1 70 Sections—67 and 68 Execution and attestation of a will — I-low is to be proved — Due execution of a will means not only that the testator executed it by putting his signature or affixing his mark but also it requires that the testator executed it in sound mind, fully knowing the nature and effect of his action — It must be proved that the testator had the testamentary capacity’ at the time he put his signature or thumb impression on the Will — The requirements of sections 67 and 68 of the Evidence Act must be fulfilled. Paresh Chandra Bhowmik Vs. Hiralal Nath and another, 4BLD (AD) 199 Sections—67 and 68 Proof of execution of a document — Whether Registrar’s endorsement is conclusive proof of execution — The certificate of a Registrar although raises a presumption as to the admission of execution by the executant yet such admission cannot be the evidence of due execution against third persons — The execution of a document is required to be proved in the manner provided by sections 67 and 68 of the Evidence Act. Abani Mohan Saha Vs. Assistant Custodian Vested Property and others; 7BLD (AD) 306 Section—73 Comparison of handwriting and signature by the Court — Court’s power to examine disputed signature is not restricted but the power should be exercised with great caution as an arbitrary exercise of the power may lead to miscarriage of justice Only in appropriate cases the Court may exercise its enabling power where the Court finds that the exercise of this power is necessary in the interest of justice. Syed Nurul Flossain and another Vs. Salema Khatun & another; 1BLD(HCD)474 Ref. 10 DLR 129; 49 C.W.N. 481; 26 C.W.N. 113; 64 C.W.N. 1067—Cited. Section—73 Comparison of handwriting by Court—Whether conclusion arrived at by comparison of hand writing or signature by the Courts below can be interfered with by the High Court Division in Second Appeal — Comparison of signature with admitted signature is a question of fact — High Court Division is not to interfere with the conclusion of the First Appellate Court on such question — Comparison of signature is a perfectly legal mode of proving hand-writing and, however inconclusive such proof may be, it cannot be considered as an error of law to base a conclusion on such proof alone — High Court in second appeal is not competent to set aside a finding based on such method — Code of Civil Procedure, l908(V of 1908) S. 100 (repealed). Abdul Matin Chowdhary Vs. Chapala Rani Sen and others; 5BLD (AD) 172 Section—73 Expert’s opinion—Whether it is better to have and come to a decision, particularly in case of L.T.L It is true that the Court itself can compare any signature or L.T.1. of any concerned person himself under section 73 of the Evidence Act and come to a decision, but it is better to have an expert’s opinion also, particularly in case of L.T.1. Sk. Abul Qasem and others Vs. Mayez liddin Mondal and others; 12BLD (HD) 161 Ref. 28 D.L.R. 123; A.I.R. 1928(P.C.)277 —Cited. Section—74 Comparison of signature or hand writing — Whether- Court should compare the disputed signature with the admitted signature to come to a decision — reliance by the lower appellate Court on his own comparison of the disputed signatures disregarding and in preference to the positive evidence by an expert is highly unsatisfactory, dangerous and imprudent in a judgment of reversal and such judgment without proper reasons results in an error in the decision on merits occasioning a failure of justice — Code of Civil Procedure, 1908 (V of 1908), S. 115. SK. Anseruddin and others Vs. Usha Raid Ghose; 6BLD (HCD) 26 Ref. A.I.R. I 928(PC)277; A.I.R. I 954(SC) 320; A.I.R. 1979 (SC) 14; 5BLD (AD) 172 —Cited. Section—74 Whether plaint of a suit is a public document — Whether certified copy of the plaint is admissible in evidence — The plaint of a suit as soon as it is registered by a judicial officer within the meaning of clause (iii) of sub-section (1) of section 74 of the Evidence Act and as soon as it forms part of the record of the judicial officer it is a public document. Certified copy of such document is therefore admissible in evidence. Reazuddin and another Vs. Azimuddin and others; 7BLD (HCD)16 Ref. 19 DLR349; PLD I 967(Lahore) 1051; A.I.R. 1940 (Mad)768; 36 DLR(AD)248; 27 DLR 398: 29 DLR(SC)268; 92 IC. 184 — Cited. Section—85 Authentication of power of attorney — A power of attorney duly authenticated raises the presumption that it was duly executed by the donor who has signed the instrument — The presumption unless rebutted, stands and the document can be admitted in evidence as a document executed by the persons alleged to have executed it, without any further proof — The defendant having failed to rebut the presumption plaintiff’s case stands. Md. Arshad Ali Vs. Abed Ali and others 4BLD(HCD)150 Ref. 30 DLR(SC)99; A.I.R. 1930 (Afl 524: A.I.R. 1971 (SC) 76; 1971(I) S.C. A. 136 —Cited. Section—85 Power of Attorney — Authentication of —Whether a power attorney, is to be authenticated for authorizing the attorney by a No-tary Public —- Whether a power of attorney duly executed and registered by the Si* Registrar can be used as a valid document Whether written statement filed by the attorney of the defendant on the strength of power of attorney duly executed by the defendant and registered by the Sub-Regisia can be accepted or the same is liable to b expunged — Section 85 of the Evidence raises a presumption as to the execution authentication of a power of attorney exec and authenticated by the executant and authority described in the section itself Although the power of attorney was authenticated by the Notary Public as request under section 85 of the Evidence Act the being duly executed and registered under provisions of the Registration Act is a document — Section 85 does not say the duly executed and a registered power of in Bangladesh is unacceptable and in document for reason of non-authentication Written statement filed by the attorney of defendant on the strength of such a attorney duly presented cannot be expunged Monindra Mohan Kar Vs. Ran Dutta and others. 7BLD (HCD) 275 Ref. 33 DLR(AD) 124— Cited. Circumstantial Evidence P.W. 4 Abdul, Aziz who claimed to be a 'flight-guard in the area of Armanitola and he stated that he saw deceased Akber Sheith And Sultan Ahmed P.W.2 to go together by nchshaw towards Ananada Moyee School. At United Transport Agency, very near to the place of occurrence he heard the firing sound and saw these two accused Ali Jan and Fazlu, Asad, Nairn and two others running away crossing the wall of Armanitola filed. It is not denied that near the place of occurrence there is Armanitola Math having a boundary wall. P.Ws. 14 and 16 have stated that they got this information from P.W. 4 in their house and in hospital immediately after the occurrence. All other P.Ws. also heard from P.W. 4 that he saw these two accused running away from the place of occurrence-—This strong circumstance lends support to the presence of the accused persons at night in the plan of occurrence. Md. Nurul Alam Vs., Ali Jan & Ors. 8 BLT (AD)-23 Circumstantial Evidence – Sufficiency of conviction Admittedly deceased Dhan Mia died in the house of accused Malek Mia. The father of Moina who is the wife to the deceased and that the accused were present in the house of Malek Mia on the night of occurrence. The defence has not challenged that the accused were not present in the house of Malek Mia. Where Dhan Mia died on the night of occurrence, no suggestion was given to that effect that they were elsewhere. A suggestion was given to P.W. 6 that Meherunnessa and her son Sibu were not present. Meherunnessa was not convicted for murder. As regards Sibu, P.W. 2 stated that she saw him. Therefore the complicity of appellants in the murder of Dhan Mia been established by the prosecution beyond any doubt. The prosecution also has been able to prove the first circumstance support of the prosecution case deceased Dhan Mia along with P.Ws. went to his father-in-law's house to bring wife Moina. P.W. 2 has satisfactorily proved that she stayed in that house and that she been all the accused at night in the east hut, thus is he second circumstance prove against the accused. After the murder of Dhan Mia, the accused got a false lodged through Meherun Nessa with the police stating that Dhan Mia committed suicide with malafide intention of screening them (accused) from legal punished although they believed that the information given to the police was false. This is another circumstance P.W. 11 holding examination on the persons of deceased found injuries and clearly opined that the death was due to the said injuries, the defence could not satisfactory explanation as to how Dhan sustained such injuries. This is an circumstance proved against the acc Since the plea taken by the defence has not been substantiated by them or injuries alternative, having found false in vie the medical evidence on record, and we find that the accused were present place of occurrence when the deceased the prosecution has been able to prove a strong circumstance of the complicity accused in the murder of Dhan Mia excluding all other hypothesis than that of the guilt of the accused. Yunus & Ors. Vs. The State 8BLT (HCD)-245 Circumstantial Evidence – When sufficient to hold a man guilty. In the instant case, it was found on evidence that Saiful Islam was a rickshaw puller and used to work in Chittagong. He enticed the victim and brought her home in his village at velara, Gaibanndha, from Chittagong. He married her on 19.05.1996 and presumably started their conjugal life together. Suddenly, he dead body of the victim was found to be dangling from a tree on the morning of 24.05.1996. There is no evidence to suggest that he was not with her on the fateful night in their house. Besides, his inexplicable conduct showing a total disregard for the dead body of his own wife highlights his reckless indifference towards |is near ones and nakedly exposes the pathological condition of his mind. In such circumstances, in the absence of any reasonable explanation coming from his side, the law shall hold him responsible for the death of his wife, the victim. The State Vs. Md. Joynal Abedin & Ors. 8 BLT (HCD)-376 Circumstantial Evidence – Onus to prove True it is that an accused has got no obligation to explain anything , the onus to prove the accusation is always on the prosecution. But if two persons live together under one roof and one of them suddenly dies in a suspicious circumstances in an unnatural manner, the other person comes under an obligation to explain the circumstances leading to his or her death. In the absence of a plausible explanation, the law casts a prima facie responsibility on the person who is alive, for the death of the victim who was earlier with him just before his or her death. The State Vs. Md. Joynal Abdin & Ors. 8 BLT (HCD)-376 Circumstantial Evidence when not sufficient for conviction The Trial Court considered it as strong a circumstance against the appellant why he was though present in the PS at the time of lodging the FIR but did not become the informant. But he failed to notice that the FIR was written by P.W. 18 Ranjit Baruna and after reading it out he took the signature of P.W 1 Abu Hossain, Another fact noticed by the Trial Court, why P.W.I flatly denied in his deposition that the appellant was with him at the time of lodging the FIR even after his attention was drawn to the FIR did not receive proper consideration from it. Moreover, P.W. 17 found only one injury causing the death and that injury was caused by the appellant and the search for money was also made by the appellant as per the confessions then how the confessions could be treated to be inculpatory. As stated earlier, the Court found that there is not an iota of evidence on record from any of the witnesses examined by the prosecution implicating the appellant with the offence or any other accused persons. All three confessions if closely considered, do not inspire any confidence in anyjudicial mind. So, this a clear case of no evidence. For the reasons, the judgment and order of conviction based solely such confessions cannot therefore be sustained in law. Abu Sayed Vs. The State 9 BLT (HCD)-175 Circumstantial evidence In a case of circumstantial evidence, the incriminating circumstances must be clearly proved and they must not be incompatible with any reasonable hypothesis of innocence. The State Vs. Monu Miah & Ors. 10 BLT (AD)-12 Circumstantial Evidence All the aforesaid witness found the appellant carrying a 'Dao' and was threatening to commit suicide if Firoja would not go with him. He stayed for Firoja Begum in her father's house upto 2/3 A. M. of the fateful night. May be after loss of both eyes, he became absolutely dependent on her to pressure his daily routine of life. But it is in evidenced that Firoja Begum became tired of Rouf and tried to get rid of him, even by divorce, which Rouf might have learnt and could not accept. P.W.-9 Ataur Rahman found Firoja died due to asphyxia by strangulation. Abdur Rouf moved out of the house of P. W.-2 Gisauddin holding Firoja. Then, in the early morning Firoja Begum found lying dead on the south bank of the canal and Abdur Rouf was also found lying with her, of course with a cut injury at his neck. Nobody came between them in the intervening time. It would not be difficult for him to strangulate her to death, when he was holding her. After fading her death, as was found by the trial court, he might have wanted to avoid the liability inflicting a cut on his own neck with the seized 'Dao' In the Absence of any other circumstance or possibility. We find all circumstances indicate toward Abdur Rouf. Abdur Rouf @ Rab Howlader Vs. The State & Ors. 11 BLT (HCD)-198 Circumstantial Evidence Circumstantial evidence is not direct to the point in issue, but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. For a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances, be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or "factum probandum" must be proved indirectly by means of certain inferences drawn from "factum probandum" that is the probative on evidentiary fact. The State Vs. Md. Ershad Ali Sikder & Ors. 12 BLT (HCD)-125 Circumstantial evidence The rule of circumstantial evidence is that the chain of circumstances must be knitted together closely, so as to led to an irresistible conclusion that the accused appellant alone had committed offence by excluding the possibility that any other person might have committed the offence. The chain of events must be such that the possibility of innocence of accused is wholly excluded and such facts are incapable of explanation of any, other reasonable hypothesis other than the guilt of the accused. Rawsan Ara Begum Vs. The State 15 BLT (HCD) 29 Circumstantial Evidence P.W. 3 a neighbour of the accused stat that he heard cries from the room of the victim Sheully in the night of occurrence b he was not allowed to enter the house and o the following morning he heard that Sheully was murdered- P.W.6 Doctor, who held the postmortem examination of the dead body of deceased Sheully Begum found several injuries, P.W.6. stated that the injuries as found might cause the death of the victim-The wife having died in the house of her husband in the night of occurrence and being no plausible and acceptable explanation as to how the victim received those injuries, the circumstantial evidence relied upon by the prosecution are strong enough to establish the guilt of the petitioner. Abdus Shaku Miah Vs. The State 3 BLT (AD)-187 Circumstantial Evidence The principle and law for convicting the accused only on the basis of the Circumstantial Evidence is well settled by many decisions such as 1985 BLD (HCD) 129, Para-21 where the test were re-iterated as to the Circumstantial Evidence- AIR 1984 (SC) 1622 has laid down singular principle's followed by 41DLR (1989) 10. Haji Md. Jamaluddin and others Vs. The State 1 BLT (HCD)-23 Circumstantial Evidence Both the Trial Court and the High Court Division considered the circumstantial evidence against the petitioner in details and found that the circumstances are such that no other hypothesis other than the guilt of the petitioner can be derived therefrom. Although the accused -petitioner was also injured in the bomb explosion there is absolutely no suggestion to the prosecution witnesses that the bomb was placed in the Beauty Parlour before the arrival of the petitioner and that the petitioner was in no bray involved with the possession of the bomb. On the contrary the state of the accused-petitioner's trouser which was made a material exhibit evidently showed that the explosion ripped through his trouser, thereby making the circumstantial evidence even more compelling against the petitioner. Ranjit Vs. The State 5 BLT (AD)-206 Circumstantial evidence Law on circumstantial evidence is well settled. It requires that prosecution is to prove each of the circumstances having a definite tendency pointing towards the guilt of accused person and, though, each of the circumstances by itself may not be conclusive but the cumulative effect of proved circumstances must be so complete that it would exclude every other hypothesis of innocence and unequivocally point to the guilt of the accused. The State Vs. Md. Delwer Hossain Faraji 13 BLT (HCD)457 Doubtful- the allegations of rape It appears from the facts of the case that victim Shakina alone went to the house of her sister Shahida for having dinner at that house and was coming back to her house at 10-00 at night accompanied by her sister with a kupi bati in hand and when the light of the Kupi bati was allegedly extinguished then her sister went back to her house for lighting the kupi bati keeping the victim girl in the midway. It has not been explained why the victim girl was kept above in the midway instead of taking her back with the sister when she went back home for lighting the kupi bati. This factor also create doubt about the whole allegations of rape-absence of sign of rape in the medical report and non-examination of the wearing clothes made the whole case most doubtful one. Seraj Talukder Vs. The State 6 BLT (HCD)-82 Vital Evidence In a case of rape, doctors report is a vital evidence to prove the sign of rape but it appears from the record that although the victim was examined by a doctor but it appears that neither the doctors was examined in the case nor his report. Seraj Talukder Vs. The State 6 BLT (HCD)-82. EVIDENCE ACT, 1872 Evidence Act, 1872 (I of 1872) Section-6 Unregistered deed of gift—the plaintiffs case was that the suit property was originally belonged to Abdul Wahab Howlader. The said Abdul Wahab Howlader executed a deed of gift in favour of the plaintiffs on 27.7.64 and delivered the possession but the said deed could not be registered due to certain difficulties. The defendants claimed the title over the suit land as a residuary sharer. Hence the plaintiff filed the title suit for declaration of title in respect of suif land—the learned trial court in consideration of oral and documentary evidence and materials on record decreed the suit. Against the said decree the defendants preferred appeal. Learned Appellate Court allowed the appeal by reversing the decree of the trial court—Held: That the plaintiffs, being in exclusive possession over the statutory period of limitation from the date of institution of the suit by the plaintiffs in the year 1984 and to the complete ouster of the defendants for about 20 years from the suit property have acquired a valid title even on the basis of the defective deed of gift being an unregistered one. It further appears that the defendant could neither challenge the said unregistered deed Ext. 1 nor file any suit to establish their alleged right in the suit property within the statutory period of 12 year and it is further held that the defect of the plaintiffs deed of gift has been cured with the passage of time and the plaintiffs imperfect title has been perfected by the said period. Amirunnessa & Ors Vs. Abdul Mannan Howlader & Ors. 3 BLT (HCD)-245 Section-6 -Document—Plaintiff instituted the suit for declaration of title and also for a declaration that the suit property cannot be treated as vested and non-resident property (Enemy Property) alleging, inter alia that one Jagat Chandra Karmaker was the C. S. recorded owner of the suit property. After his death his son Gopal Karmaker inherited the said property. This Gopal Karmaker transferred the suit property to one Harendra Lal Saha and Jagannath Saha. After the death of Harendra Lal Saha his property was inherited by his two sons Chandi Gopal Saha and Ashutosh Saha. One Parveen Akter purchased the suit property by registered deeds from Chandi Gopal Saha, Ashutosh Saha and Jagannath Saha. From this Parveen Akther plaintiff- appellants had purchased the suit property while the plaintiffs were possessing the suit land, they came to know that the property in question was declared as vested and nonresident property—learned Subordinate Judge dismissing the suit holding that the plaintiffs failed to produce any document to show the transfer in between Gopal Karmaker and Harendra Lal Saha and others— Held : The averments made in the plaint and the evidence of P.W.I together with the written statements of defendant No. 2 and the evidence of P.W. I it clearly appears that Harendra Lal Saha and others became the owners of the suit property and they possessed the same and sold the same to Mrs. Parveen Akhter by registered sale deeds in 1981—the rent receipts together with the continuous record as right vide exhibits I series may be treated as collateral evidence of title in favour of the plaintiff. Now, if we consider the oral as well as documentary evidence as stated above, we find that this Harendra Lal Saha and others acquired right and title over the suit property. The documents by which the heirs Harendra Lal and Jagannath transferred the suit land to Parveen Akhter and the registered document by which Parveen Akther transferred the land to the present plaintiffs are not disputed at all. So it is held that the learned Subordinate Judge failed to consider the material evidence or record as stated above and he has arrived at a wrong finding and as such it cannot be sustained. [Paras-16 & 17] Md. Amjad Hossain & Ors Vs. Upazilla Nirbahi Officer Savar & Ors 3 BLT (HCD)-163 Section-33 The market value of the vessel of the plaintiff was determined by the Admiralty Judge on the basis of Ext. 25 series which is the deposition of seven witnesses (employees of the plaintiffs vessel) who appeared before the Magistrate, 1st. Class, Marine Court, Dhaka. It is really unfortunate that deposition of those persons who deposed in a criminal proceeding before the Marine Court was relied upon by the Admiralty Judge. Under section 33 of the Evidence Act that proceeding was not between the same parties. As a matter of fact, Ext. 25 series is not admissible in this admiralty proceeding and Ext. 25 series cannot be legally accepted as the basis for determining the market value of the vessel and consequently the passing of the decree of Tk. 80,10,000/- is without any legal evidence and the same cannot be awarded in favour of the plaintiff as has been done by the learned Admiralty Judge. [Para-14] BIWTC Vs. Al-Falah Shipping Lines Ltd. & Ors. 6 BLT (AD)- 103 Section-73 Handwriting expert opinion as to the identity of the disputed signatures arid initials on a questioned document—Contention than the opinion of the handwriting expert is preferable to the courts exercising the power under section 73 of Evidence Act which is to done very cautiously and the said course is hazardous and inconclusive was rejected— petition dismissed. It is true that long line of decisions have expressed divergent views and one view is that the Court should not take such hazardous steps for expressing any opinion and another view to the contrary. In the context of two views, a Judge naturally hesitates to exercise the power conferred by section 73 to compare handwriting by using his own eyes. This is more so whenever evidence is scanty or unreliable or there is no evidence of hand-writing expert but these are mere words of caution. There is no hard and fast rule which prohibits such course by the Judge. The privy Council itself compared the disputed signatures with admittedly genuine signature in Monindra Vs. Tshalaxmi Bank, A. I. R. 1945 P.C. 150 and the same was followed in A.I.R. 1949 PC 325. Mr. Gafur strenuously urged that this court should lay down the law. This contention does not appeal to us in view of the fact that the proceeding is still pending in the Court below and sufficient guidance has been given by the long line of decisions for the Court which do not warrant any further pronouncement. Nitai Chand Shah & Ors. Vs. Md. Aga Khan & Ors. 1 BLT (AD)-46 Section- 101 Onus of proof—both sides have adduced their evidence in support of their respective cases and when the date is fixed for argument the defendant petitioner filed two applications before the Family Court, one for examining the plaintiff opposite party No. 1 by a Gynecologist to see whether she is still virgin in the instant case the plaintiff-opposite party No. 1 is to prove her case and will get its own course and for matter she cannot be examined by a competent doctor to as certain as to whether she is virgin or not because thereby the onus of proving the defense will be illegally shifted on the plaintiff opposite party No. 1. Learned Family Court rightly rejected the application of the defendant petitioner. [Para-8] Md. Abdul Mannan Sikder Vs. Mst. Nurun Naher Begum 4 BLT (HCD)-148 Section- 101 Burden of proof—vested property — when challenged in a Court of law, the onus is heavily on the Government to prove affirmatively that the property in question is in fact a vested property, failing which some evidence to the contrary adduced by the successors-in-interest of the original tenant or the transferees showing that they are in rightful possession of the disputed properties, is sufficient to take the same out of the ambit of enemy property laws. Mere claim by the Government or by the vested property authority that a certain property is a vested property, without the necessary factual basis and legal foundation, has no validity in the eye of law. [Para- 18] Maran Mondal & Ors. Vs. A. D. C. (Rev). 6BLT (HCD)-22. Section-101 Whether the cashier is a necessary party – The plaintiff respondent filed money suit against Bank, the sole defendant appellant for realisation of deposited money by himself— the cashier is not a necessary party in the suit in the facts and circumstances of the case. (Para-8) Pubali Bank Vs. Md. Selim 7 BLT (HCD)-21 Proof of a document Unless objection as to admissibility of a document was taken at the earlier opportunity, that is, at the time of admitting the documents into evidence and marking it as an exhibit, the question of its admissibility cannot be raised at a subsequent stage. (Para-l3) Pubali Bank Vs. Md. Selim 7BLT (HCD)-21 Sections-102, 103 & 104 Suit for cancellation of Heba-bil-ewaz— The onus was upon the defendants according to prove the gift has been made intentionally, voluntarily and the consideration has passed. [Para- 12] Md. Nurul Islam & Ors. Vs. Azimom Bewa 6 BLT (HCD)- 116 Section- 102 Burden of proof is that obligation to adduce evidence to the satisfaction of the court in order to establish the existence or non-existence of a fact contended by a party. The provision as to the burden of proof is founded on the Rule ‘el incumbit probatio, qui dicit non qui negat’– the burden of proving a fact rests on the party who substantially assents of the affirmative issue and not upon the party who denies it; for a negative is usually incapable of proof’. This Rule is derived from the Roman Law and is supportable not only on the ground of fairness but also upon that of the greater practical difficulty which is involved in proving a negative than in proving an affirmative. This Rule is an ancient Rule founded on consideration of good sense and should not be departed from without strong reasons. Mohammad Azim & Ors Vs. Doly Islam & Ors 7 BLT (HCD)- 164 Section- 103 Onus – Presumption of genuineness of Ext. 4, the pattani register called for by the plaintiff. The plaintiff claimed that she took settlement of suit land by means a ‘Dhol fordi’ and Dakhila grarted by the Midnapur Zamindari Company Ltd. — The appellate court summarised its findings by way of stating that PW 1 and PW2 were not competent witnesses while the witnesses of the alleged settlement Kalipada Ghose and Korban Au were not cited as witnesses. There was no evidence that the tahsiider who allegedly gave the settlement had any authority to do so. The Dakhilas produced by the plaintiff were also not properly proved and the trial court wrongly exhibited the ‘fordi’ and Dakhilas as the basis of settlement as there was no proper proof of them — We may add that there is nothing on record to relate Ext.4 to the settlement claimed by the plaintiff. Agaib, the hukumnama and other documents of settlement in favour of the plaintiff were for the plaintiff to produce. In the absence of proof of existence of the said documents the defendants could not be supposed to be in a position to produce them. Thus the High Court Division had obviously given a wrong onus and drawn an incorrect presumption of genuineness of Ext. 4. [Paras-13 & 15] Bangladesh & Anr. Vs. Abdul Latif Khan & Ors. 7 BLT (AD)-208 Section-114 (g) In this case nowhere in the plaint it has stated that any of the attesting witnesses was present at the time of finalisation of talk for entering into the alleged agreement by the parties. The attesting witnesses appeared at the scene at a subsequent stage only at the time of execution of the alleged bainapatra, which is just a follow-up of the earlier proceedings. So, the earlier part of the proceedings remains totally unexplained for reasons best known to the plaintiff. The conspicuous absence of the plaintiff from the scene without any justifiable reason appears to be a mystery that has not been dissolved any cogent explanation and on that count the learned Court of appeal below was perfectly justified in drawing an averse presumption under section 114(g) of the Evidence Act. [Para- 13] Abdur Rahim Vs. Arfin Rahman & Ors 6 BLT (HCD)-51 Section-115 The respondent voluntarily wanted to go retirement as his juniors had obtained promotion. He clearly mentioned in his letter that he did not have the requisite qualifying service to opt for retirement, even then he sought permission for retirement upon special consideration. It was on such representation the order of release was passed. He is now stopped to challenge the release order. A party litigant cannot be permitted to assume in consistent positions in court, to play—fast and loose, to blow hot & cold, to approbate and reprobate to the detriment of his opponent. [Paras- 17 & 20] Bangladesh Pajatan Corporation & Ors. Vs. Md. Mafizur Rahrnan & Ors. 2 BLT (AD)-49 Section-115 Whether suit is riot barred by estoppel and waiver. The plaintiff was threatened with dispossession in a summary way by the defendants and it was under the instant threats of forcible dispossession he had to pray for year- ly lease of the suit property for saving his possession, albeit under protest and lost no time in coming to the court for vindication of his grievance—In the present case the plaintiff was always diligent in asserting his own title in the suit property and he never abandoned his claim of ownership over it nor the defendants were misled by his prayer for annual lease so as to change or alter their position to their detriment and the prayer for temporary lease being obviously under protest and without any prejudice to the rights of the parties, the doctrine of estoppel or waiver has no manner of application in the present case. [Paras- 12 & 13] Maran Mondal & Ors. Vs. A. D. C. (Rev). 6 BLT (HCD)-22 Section- 115 Pre-emptor is a co-sharer to the case jote by inheritance and the pre-emptee is a stranger to the case jote—In the instant case the pre-emptee of course, took such a plea of the principles of waiver, estoppel and acquiescence in his written objection and led some evidence. The pre-emptor, on the other hand, stoutly denied the said assertion and stated that the sale took place stealthily and beyond his knowledge without serving the statutory notice upon him and consequently he had no knowledge about it for quite a long time and he filed the pre-emption case promptly on obtaining the certified copy of the sale deed, following his knowledge about it— Held: Section 96 of the State Acquisition Tenancy Act being a beneficial legislation intended for the convenience of co-sharer of a holding as well as the convenience of tenants holding land contiguous to the land transferred, any provision of law barring the claim of pre-emption must be strictly construed, judged from that angle of vision the claim of waiver and acquiescence made by the pre-emptee must be rejected as being totally unsubstantiated. [Para- 11] M. M. Ahmed Sarker Vs. A. Khaleque & Ors. 6 BLT (HCD)-66 Section- 115 The appellant as a Government servant did not go for voluntary retirement and he was given compulsory retirement from service as a measure of punishment and as such the principle of estoppel is not attracted in the facts and circumstances of the case in as much as the appellant under compelling circumstances had to accept the financial benefits from the Government as contended by the appellants counsel. Held : We are of the opinion that acceptance of pensionary benefits in the facts and circumstances of the present case cannot be accepted as estoppel within the meaning of section 115 of the Evidence Act. [Para-8] Md. Jahangir Kabir Vs. Bangladesh 4 BLT(AD) -14 Section—115 Whether an attesting witness is bound by the contents of a document- There is no evidence in the instant case that Sheikh Babu had any knowledge about the contents of the document attested by him beyond his mere attestation. Therefore it cannot be said that Sheikh Babu was in any way bound by the transaction by the kabala in question. [Para—9] Amanatullah & Ors Vs. AU Mohammad Bhuiyan & Anr 6 BLT (AD)-1 Section- 135 When there are two sets of defendants to contest the suit and if one set of defendants goes to supports the claim of the plaintiffs wholly or in part, when in that case that set of defendants should be asked to cross-examine the witness of the plaintiff first as contended by the petitioner’s Advocate. Held: Admittedly there is nothing in the Code specifically as to which of the defendants should cross-examine any prosecution witness first and hence, a court is to fall back on section 135 of the Evidence Act which speaks of the discretion of the court to fix the order of production and examination of witnesses, of course such discretion should be exercised judicially and not arbitrarily in the facts and circumstances of each case. [Para-7] Shamsul Alam & Ors Vs Amirul Rahman Choudhury & Ors 3 BLT (HCD)-170 Section- 138 Section- 138 Principle on Re-Examination It is well-settled that where is no ambiguity or where there is nothing to explain, questions which are to be put in re-examination with the sole object of giving a chance to the witness to undo the effect of a previous statement cannot be allowed. To be precise, re-examination shall not be allowed to destroy the effect of cross-examination. [Para-8] Ihteshanur Rahman Vs. Most. Masuda Khatun & Ors. 6 BLT (HCD)-47 Section- 167 Section 167 of the Evidence Act provides that if there is sufficient evidence to justi1r the decision then improper admission or rejection of the evidence will be no ground for a new trial. [Para- 14] Jamaluddin & Ors. Vs. Abdul Majid & Ors. 6 BLT (AD)-137. EVIDENCE ACT, 1872 Evidence Act [I of 1872] Section 3— Relationship of the witnesses with a party cannot be the sole ground of disbelieving their evidence unless contradiction and inherent infirmity are found in their evidence. Bachu Miah vs Samad Miah and others 50 DLR 564. Section 3— Partisan evidence is no doubt suspect, but cannot be discarded without finding any inherent infirmity and/or contradictions therein making the same unworthy of credence. In the context of prevailing deteriorating law and order situation in the society where open threat is given to the witnesses not to depose in support of the prosecution case the difficulty of the prosecution to bring independent witnesses, and the rising tendency of witnesses giving testimony in the Court to favour the accused giving different versions of the occurrence from the one made to the investigation officer at the time of investigation, for the above reasons, should be considered before finding fault with the prosecution for non-production of independent witnesses and relying on the evidence of the witnesses declared hostile by the prosecution without properly evaluating whatever evidence is available on record with a critical eye in the context of the respective cases of the parties. Dulal Miah @ Dulal @ Nurun Nabi vs Ruhul Amin and others 50 DLR 618 Section 3— Recognition by torch and hurricane at dead of night is doubtful. Abu Bakker and others vs State 49 DLR 480. Section 3— A witness has a tendency to exaggerate, embroider and also to implicate falsely some other person in addition to the real offender. The Court is to scan the evidence so as to come to a decision as to which part is acceptable and only in case of impossibility to separate the truth from falsehood, the Court will be justified in rejecting the evidence in toto. Masum and others vs State 49 DLR 349. Section 3— Evidence adduced by the prosecution being of a circumstantial nature and there being a missing link in the chain of circumstances, the prosecution failed to prove the guilt of the appellants beyond reasonable doubt. Nuru Miah and another vs State 49 DLR 97 Section 3— In the absence of the practice of registration of birth in the official register kept by any public authority, one cannot really be sure of the date of birth of any particular person. Ultimately, it falls on the court to determine the age of the victim girl based on the impression received, by her behaviour and appearance when brought before this court. Nurunnahar Khatun vs State 46 DLR 112. Section 3— Long delay in examining the material witnesses casts a doubt on the whole prosecution case. Syed Nazakat Hossain alias Ujjal vs State 48 DLR 139. Section 3— Circumstantial evidence —If the circumstances are not proved beyond all reasonable doubt by reliable and sufficient evidence and if at all proved but the same cumulatively do not lead to the inevitable conclusion or hypothesis of guilt of the accused’s alone but to any other reasonable hypothesis compatible with the innocence of the accused then it will be a case of no evidence and the accused should be given benefit of doubt. Bakul and others vs State 47 DLR 486. Section 3— Circumstantial evidence must be so strong as to eliminate the possibility of innocence of the accused person. State vs Balai Chandra Sarker 47 DLR 467. Section 3— A witness for the prosecution does not become partisan per se nor an eye-witness can be disregarded merely because he has come to support the prosecution party. It was necessary to consider the whole evidence and then to assess the worth of the witnesses as a whole. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Section 3— Benefit of doubt to the accused would be available provided there is supportive evidence on record. For creating doubt or granting benefit of doubt, the evidence is to be such which may lead to such doubt. The law would fail to protect the community, if fanciful possibilities are admitted, thus, deflecting the course of justice. Al-Amin and 5 others vs State 51 DLR 154. Sections 3, 5 & 8— Ordinarily an accused has no obligation to account for the death for which he was placed on trial, but the murder having taken place while the accused was living with his deceased wife in the same house; he was under an obligation to explain how his wife had met with her death. Abul Kalam Mollah vs State 51 DLR 544 Sections 3 & 30— Confession of co-accused—The confession of an accused is no evidence against the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 3 & 30— It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found against him. Abul Hossain and others vs State 46 DLR 77. Sections 3 & 30— Section 5— The Court ought not to have rejected the evidence of witnesses merely on the ground that they were not disinterested witnesses when their examination-in-chief could not be shaken in cross-examination by the defence. Samad Sikdar @ Somed Sikder vs State 50 DLR (AD) 24 Section 5— In the instant case where bitter enmity between the parties is admitted, some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. Abdul Kader alias Kadu and others vs State 49 DLR 577 Section 5— Where bitter enmity between the parties is admitted some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. Serajul Islam and others vs State 48 DLR 165. Section 5— Courts must seek corroboration before acting upon interested witnesses in a criminal trial. It is the Court’s solemn duty to assess the evidence legally not only to secure conviction but also to record acquittal. State vs Khalilur Rahman 48 DLR 184. Section 5— An unreasonable delay in lodging the FIR inevitably gives rise to suspicion as to the trustworthiness or otherwise of the prosecution version of the case. State vs Tajul Islam 48 DLR 305. Section 5— When the alleged eye¬witnesses recognised the miscreants and disclosed their names to the informant before lodging the FIR and still then the informant does not mention their names in the FIR, the evidence of such witnesses must be kept out of consideration. State vs Tajul Islam 48 DLR 305. Section 5— If there are admixture of falsehood so that it becomes impossible for the courts to separate the grains of truth from mass of chaff, then such evidence of a witness must be rejected as a whole. Bazlu Talukder and others vs Deputy Commissioner Madaripur 48 DLR 509. Section 5— When the witness has animus against the accused her evidence cannot be relied on except with strong corroborative evidence. State vs Raisuddin and others 48 DLR 517. Section 8— Mere abscondence for some time without any guilty mind cannot be an incriminating circumstance against the accused to be relied upon for basing his conviction. Shahjahan vs State 46 DLR 575. Section 8— In a case where bitter enmity is admitted between the parties, it is required as a rule of prudence that there should be some corroboration of the evidence of the interested witness. Amir Hossain Dhali and other vs State 49 DLR 163 Section 8— As the condemned-accused absconded from the very beginning of the case, it appears that the learned Sessions Judge has been influenced for the same in awarding the capital sentence against him which is against the decided principle of law. From the conduct of a person for absconding after commission of the offence may sometimes be evidence to show that he was concerned with the offence. But it is usually a very small item in the evidence on which a conviction can be based. State vs Balai Chandra Sarker 47 DLR 467. Section 8—Motive is not imperative in every case of murder and even if motive is not established that does not throw the prosecution case overboard. Ashraf Ali Munshi vs State 48 DLR 590. Section 8— Abscondence—Though the fact that the accused absconded soon after the crime is not an evidence itself but it may lend weight to other evidence. Ashraf Ali Munshi vs State 48 DLR 590. Section 9— Long abscondence and non-submission to the process of the court speaks a volume against the accused persons and clearly suggest their involvement in the crime. Abscondence of the accused persons furnished corroboration of the prosecution case and evidence. Al-Amin and 5 others vs State 51 DLR 154 Section 9— The non-holding of the Test Identification Parade cannot affect the identification of the accused Shamim Hossain by the victims at the time of trial and the statement made by the witnesses are the legal and substantive evidence in the eye of law. Al-Amin and 5 others vs State 51 DLR 154 Section 24— Since the confessing prisoner neither filed any petition from jail nor directly filed any petition in Court nor made any oral allegation retracting from the confession his last moment retraction cannot be entertained. State vs Kamal Ahmed 49 DLR 381. Section 24— Extra-judicial confes¬sions are not usually considered with favour but it does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support his statement should not be believed. Syed Ahmed vs Abdul Khaleque and others 51 DLR 43. Section 30— Section 30— Confessional statement of one accused cannot be used as evidence against another co-accused unless there is any independent corroboration. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407 Section 30— The evidentiary value of a retracted confession is practically nil in the absence of strong independent evidence. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407 Section 30— The confession of a co-accused may be used only to lend assurance to other evidence on recorded in support of the guilt of the accused but the same cannot be used as a substantive evidence. Moslemuddin and another vs State 48 DLR 588. Section 30— Section 30—If confession falls short of plenary acknowledgment of guilt it would not be a confession even though the statement contained some incriminating fact. J abed Ali (Md) alias Jabed Ali and others vs State 51 DLR 397 Sections 30 & 3—Confession of co-accused—The confession of an accused is no evidence agianst the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 30 & 3—It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found agianst him. Abul Hossain and others vs State 46 DLR 77. Sections 30 & 3— Section 45—The High Court Division rightly found that it was unsafe to convict the accused persons on the uncorroborated opinion of handwriting and fingerprint expert. State vs Raihan Ali Khandker and others 50 DLR (AD) 23. Section 45—The Court was not justified in convicting the accused without examination and comparison of the disputed signature on the back of the cheque by handwriting expert with his specimen signatures. Khadem Ali Akand (Md) vs State 49 DLR 441. Sections 45 & 73—The expert’s opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. Sections 57 & 60—The Appellate Division will set no example before the Courts to make reference to booklets of unknown origin. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Sections 73 & 45—The expert’s opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. Section 80—Non-examination of the Magistrate who conducted the TI parade renders the memorandum drawn by him inadmissible as it is not a judicial proceeding and that cannot be presumed genuine unless proved by the evidence. Mizanur Rahman (Md) vs State 49 DLR 83 Section 80— Section 80—It dispenses with the necessity of a formal proof of a confession duly recorded by a Magistrate in accordance with the provisions of section 164 of the Code of Criminal Procedure. In such a case the examination of the recording Magistrate is not imperative. State vs Tajul Islam 48 DLR 305. Section 80—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466 Section 114(g)— Non-examination of independent witnesses, especially some of the close neighbours calls for a presumption against the prosecution. This view finds support from the case reported in 25 DLR 398. Kawsarun Nessa and another vs State 48 DLR 196. Sections 101 & 106— Since no special knowledge of the relevant fact as to committing of the crime could be attributed to the accused the provisions of sections 101 & 106 of the Evidence Act have no applicability in the case. Kawsarun Nessa and another vs State DLR 196. Sections 101 & 106— Section 106 does not relieve the prosecution of the duty to discharge its onus of proving a case as has been imposed by section 101 of the Evidence Act. Shahjahan Talukder @ Manik and others vs State 47 DLR 198. Section 114(g)— The principle laid down in the said case along with the provision of 114(g) of the Evidence Act is applicable in the present case where the prosecution suffers for non-examination of dis-interested and independent witnesses as though the occurrence is alleged to have taken place in the broad day light on the busy pathway. Alamgir Hossain (Md) alias Alamgir Hossain and another vs State 49 DLR 590. Section 114(g)— Withholding of charge-sheet witnesses—In a case where there is no eye-witness or circumstantial evidence, it is essential that next-door neighbours or those living near the place of occurrence be examined. Momin alias Md Mominul Huq vs State 48 DLR 282. Section 118— All persons, who can understand the questions put to them or can give rational answers to those questions are competent to testify before a court. It is not imperative for the court to subject a child witness to preliminary examination before reception of his evidence. The court may satisfy itself during the progress of the evidence in court that the witness is capable of understanding the questions put to him and of giving intelligible reply. In case of such satisfaction, the evidence becomes admissible. It is, desirable that the court should make an endorsement about its satisfaction. Seraj Miah vs State 49 DLR 192. Section 118—Though a child witness, PW 2 received injuries in the hands of the appellants when his father was done to death and the witness having testified about the factum of the occurrence and the same having not been shaken in cross-examination, the witness, though a child, should be believed in the facts of the case. Forkan alias Farhad and another vs State 47 DLR (AD) 149. Section 134—In order to convict an accused solely on the basis of a solitary witness like the police officer or the person who made the search and seizure, the Judge must ensure that such witness is disinterested and the evidence is unimpeachable and the other witnesses to the search who are alleged to have resiled from their previous stand are unworthy of credit. Talebur Rahman alias Taleb and 2 others vs State 49 DLR 167 Section 134—Even on the basis of a single witness a conviction can be maintained but such a witness must be fully reliable, above reproach and not shaken. Ashok Kumar Saha vs State 46 DLR 229. Section 134—Law does not require any particular number of witnesses to prove a case and conviction may be well-founded even on the testimony of a solitary witness provided his credibility is not shaken. Al-Amin and 5 others vs State 51 DLR 154 Section 134—It is true that under section 134 of the evidence Act conviction can be based on the Evidence of a single witness but the evidence of that witness must be of unimpeachable character. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466 Section 145—Statements made under section 161 CrPC are not substantive evidence. Such statements can only be utilized under section 162 CrPC to contradict the witness in the manner provided by section 145 of the Evidence Act. Abdus Subhan vs State 46 DLR 387. Sections 145 & 155—The trial Court illegally referred to and considered the statements of witnesses recorded under section 161 Criminal Procedure Code, which could only be used to contradict or corroborate the witness. Abu Bakker and others vs State 49 DLR 480. Sections 145 & 155—Statement of a person recorded under section 164 CrPC is not a substantive piece of evidence of the fact stated therein. Such statements recorded by a Magistrate under section 164 CrPC can only be used for contradicting the maker of it under sections 145 and 155 of the Evidence Act or for the purpose of corroborating him under section 157 of the Act. Seraj Miah vs State 49 DLR 192 Section 146—Mere relationship of the witness should not be a ground for discarding his evidence unless he is found to be biased and lying. Sarwardy Kamal and others vs State 48 DLR 61. Section 154—Even if there is some discrepancy in the evidence of a witness with regard to some part of the case, for that his entire evidence on the remaining part should not be discarded. Abdus Sukur Mia vs State 48 DLR 228. Sections 154 & 142—Court may in its discretion permit a party to put questions to its witness which are usually put in cross-examination by the adverse party. Babul vs State 50 DLR 490 Sections 154 & 155—The evidence of a witness is not to be rejected either in whole or in part simply because of being cross-examined by the party calling him, but the whole of the evidence as far as it affects both parties, favourable or unfavourable, must be taken into account and assessed like any other evidence. Amir Hossain Dhali and others vs State 49 DLR 163 Section 156—The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of a victim of sex crime alone to convict an accused where her testimony inspires confidence and is found to be reliable. One must remain alive to the fact that in a case of rape no self respecting woman especially a college girl would come forward in a court just to make a humiliating statement against her honour and dignity such as involved in the commission of rape upon her. The court must not cling to fossil formula and insist a corroborative testimony, even if, taken as a whole the case spoken to by victims of sex crimes strikes a judicial mind as probable Judicial response to Human Rights cannot be blunted by legal bigotry. Al-Amin and 5 others vs State 51 DLR 154. EVIDENCE ACT, 1872 EVIDENCE ACT, 1872 (I OF 1872) Section—31 This section deals with the effect of admissions with regard to their conclusiveness. It means that admissions are not conclusive proof of the matters admitted and the party is at liberty to prove that these were made under mistake of law or fact or that these were untrue or were made under threat, inducement or fraud. Sonali Bank Vs. Mr. Hare Krishna Das and other, 16 BLD (HCD) 159. Section—33 Market Value of the Vessel The market value of the vessel of the plaintiff was determined by the Admiralty Judge on the basis of Ext. 25 series which is the deposition of seven witnesses (employees of the plaintiffs vessel) who appeared before the Magistrate, 1st Class, Marine Court, Dhaka. It is unfortunate that deposition of those persons who deposed in a criminal proceeding before the Marine Court was relied upon by the Admiralty Judge. Under section 33 of the Evidence Act that proceeding was not between the same parties. As a matter of fact, Ext. 25 series is not admissible in this admiralty proceeding and Ext. 25 series cannot be legally accepted as the basis for determining the market value of the vessel and consequently the passing of the decree of Tk. 80,10,000/- is without any legal evidence and the same cannot be awarded infavour of the plaintiff as has been done by the learned Admiralty Judge. Bangladesh Inland Water Transport Corporation Vs Al-Falah Shipping Lines Ltd. and others, 17 BLD (AD) 136. Section—44 Any party to the suit or any proceeding may challenge the judgment or order passed by a Court on the ground of want of jurisdiction or on the ground of fraud and collusion. The party seeking to establish fraud must make specific allegations as to the nature of the fraud and must prove fraud by cogent evidence, In fine, fraud must be specifically pleaded and proved. Osman Gani Talukder alias Sujat Ali Talukder Vs. Md. Osman Ali Mondal, 16 BLD (HCD)165. Sections—45, 47, 67 and 73 The proof of genuineness of a document is of the authorship of the document and is proof of a fact like that of any other fact. The opinion of handwriting expect should be received with great caution and it is unsafe to base a decision purely on experts opinion without sufficient corroboration. In the instant case, taking opinion of the handwriting expert on comparing the siquantive and thumb impressions of the plaintiffs in Court on their physical appearance is not necessary. Plaint or written statement after it has been filed in court and registered becomes a public document and thus the court is competent to form its opinion on a comparison of the handwritings and signatures appearing on the materials on record with the signatures appearing on the disputed solenama. Sreemati Hajari Roy and others v. Arun Kumar Singha and others, 22 BLD (HCD) 169. Ref: Gura Meah Shah and others v. Zahir Ahmed and others, 4BLD225. Sections—45 and 73 Comparison of disputed signature /LTI cannot be done by the expert with the said registered document which is not admitted or proved to the satisfaction of the Court. Dinesh Chandra Deb Vs Dulal Chandra Karmaker & others, 21BLD (HCD) 461. Ref: State (Delhi Administration) Vs. Pali Ram, A1R1979(SC)14; Krushna Chandra Vs. Commissioner of Endowment, A1R1976 Orissa 52; Sreemuthy Sarojini Dassi Vs. Han Das Ghose, 26 CWN 113—cited Section— Section—63 Secondary evidence The production of the certified copy of a sale- deed does not by itself warrant the presumption of due execution of the original document. A party producing the secondary evidence of a document is not relieved of the duty of proving the execution of the original. Even in a case where a document has been exhibited without objection the Court is to be satisfied as to the execution of the document. Soya Rani Guha alias Soya Rani Gupta Vs. Abdul Awal Mia and others, 14 BLD (AD) 257. Section—65 Secondary evidence is not admissible in evidence unless there is proof of execution of the original and its subsequent loss or destruction. In the case of a Hiba-bil–Ewaj deed, actual delivery of possession is not necessary, payment of consideration to the donor and the bonafide intention of the donor to divest himself in present of the property are enough for a valid transfer under the deed of Hibabil-Ewaj. Abdur Razzak Vs. Ahila Khatun & Ors, 13 BLD (HCD) 610. Ref: Meherchand Banu Vs. Salimullaha & others, 22 DLR (HC) 316, 6 DLR (P.C) 598-cited. Section—73 Section 73 of the Act clearly empowers the Court to itself examine the disputed signatures to form its own opinion thereon, independent of the opinion of the hand-writing expert. The Court is never bound to obtain the opinion of a hand writing expert nor is such opinion binding upon it. Moreover, the art of calligraphy is yet to attain any decree of accuracy and precision so that the Court can place explicit reliance on it. Sree Naru Gopal Roy Vs Parimal Rani Roy and others, 21 BLD (HCD) 282. Section—73 Comparison of signature or writing by the Court Under Section 73 of the Evidence Act the Court is the final expert with authority to compare itself any disputed signature or writing or thumb impression to come to its own conclusion without referring the matter to an expert. The Court being the final authority to decide the matter can override or disregard the opinion of a Hand-Writing Expert. Hachina Begum Vs. Mosammat Mahfuza Akhter, 16 BLD (HCD) 374. Section—73 While it is competent on the part of a Judge to compare disputed signatures or wt ings with admitted signatures or writings for himself it is usually unsafe to rely entirely on such comparison without expert advice or scientific examination. Sree Pratik Bandhu Roy Vs. Sree Alok Bandhu Roy, 16 BLD (HCD) 445. Ref: AIR 1962 (Andra) 178; AIR 1928 (PC)277; AIR 1961 (Cal) 491—Cited. Sections—91 and 92 Sections —91 and 92 Sections—91 and 92 Section—95 Section 95 of the Act provides that when language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense. In the instant case the transaction vide registered sale deed dated 14.7.1978 was absolutely a malafide one in order to deprive and defraud the defendant-petitioner. So, the person committed fraud should not be allowed to enjoy the fruits of his own fraud and as such the plaintiffs had not acquired any right and title in the suit property out of a fraudulent transaction by a deed of sale. Md. Abdur Rahman Mia Vs. Md. Saber Au Mia, 19 BLD (HCD) 342. Ref: 57 I.C. page 569; 84 I.C.137—Cited Section—103 When the plaintiff fails to prove the execution of his bainapatra by the defendant by examining the scribe and other independent attesting witnesses and fails to prove that he was put to physical possession of the suit land in pursuance of the agreement for sale, the execution of the bainapatra cannot be said to have been duly proved. Under such circumstances he is not entitled to get a decree for specific performance of the contract. Kartick Chandra Das Vs. Md. Abul Hossain Bhuiyan and another, 14 BLD (HCD) 585. Section—103 Burden of proof as to particular fact A statement in the plaint or in the written statement is no evidence in the eye of law unless it is proved by examining a witness on oath. In the instant suit the defendant claimed that the original owners had left this country before 1965 and the suit property became enemy property by operation of law. The onus was upon the defendant to prove that fact either by examining any witness or by producing any reliable documentary evidence establishing that the real owners had left this country before 1965. In the absence of such evidence the property in question cannot be treated as enemy property or vested property. Sreejukta Haladhar Karmakar Vs. Bangladesh, 16 BLD (HCD) 519. Section—106 Burden of proving fact especially within the knowledge of any person—Alibi in a quasi-criminal proceeding Even in a quasi-criminal proceeding if a plea of alibi is taken the burden to prove it is on the person who takes such a plea, because that fact is within his special knowledge. The petitioner had opportunities to prove his absence from the country since 1982 at the trial Court, the lower appellate Court and the High Court Division but he did not avail of the opportunities. Even before the Appellate Division the petitioner failed to produce any proof in support of his plea of alibi. Under such cir cumstances the petition merits no consideration. Md. Abdul Tahid alias Tahid ulla V. M Kadaris Ali and ors., 16 BLD (HCD) 248. Section—114(g) Non-Production of the requisition slip by the prosecution leads to an adverse presumption against it under section 114 (g) of the Evidence Act that if the slip was produced it would show that the Director himself obtained the blank Accession Register and, thereafter, ‘gave the same to Accused Respondent No.2 for preparation of a neo Register Expunction of observations—In the facts and circumstances of the case and evidence on record, the observations made by the learned Special Judge against the informant in the judgment under appeal are, in no way, unjustified, the same call for no interference. The Solicitor, Government of Bangladesh. Vs. Feroz Mahmud and another, 14 BLD (HCD) 160. Section—114(g) Wireless Telegraphy Act, 1933, Section—5 When an action is taken or decision is taken by maintaining a file, that file must be produced before the court to show that the act was done properly. In the instant case, the relevant file has been withheld. Hence, presumption under section 114(g) of the Act shall apply. Inspite of repeated orders, the file was not produced by the respondents with whom those were lying. In such circumstances, the Court is constrained to draws an adverse presumption under section 114(g) of the Act. Chowdhury Mohmood Hossain v. Bangladesh and others, 22 BLD (HCD) 459. Section—115 Estoppel When on his own volition, the Respondent induced the Appellate to allow him to retire from service, which is akin to and in substance an order of release, the Respondent now cannot be allowed to say that his order of release is illegal. He cannot be allowed to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent. Bangladesh Parjatan Corporation, represented by its Chairman and others Vs. Mr. Mofizur Rahman and another, 14 BLD (AD) 61. Section—115 Estoppel To bring a case within the scope of estoppel as defined in section 115 of the Evidence Act, the person claiming the benefit must show that he was not aware of the true state of things. If he had the means of knowledge about the real state of affairs, estoppel will not operate. Sarafat Hossain Vs. Dr. Islam Uddin, 14 BLD (HCD) 253. Section—115 State Acquisition and Tenancy Act, 1950, Section—96 In the absence of conclusive evidence of waiver to operate against him, the pre-emptor cannot be estopped from exercising his right of preemption. Md. Ajmat Ali Vs. Jamaluddin and others, 14 BLD (HCD) 563. Ref: Akhlasur Rahman and others Vs. Shafur-ullah and ors, 14 BLD(AD)20—Cited. Section—115 Estoppel A party cannot blow hot and cold in his stand before a Court of law. He is not entitled to approbate and reprobate in the same breadth. After having participated in the election and being defeated, the defendant cannot disturb the functioning of the elected manager without getting the election of the latter declared illegal by a competent Court. Anwar Hossain Vs. Abdul Gafur and others, 14 BLD (HCD) 260. Ref: 42 DLR 498; 5 B.C.R. (AD) 85; 35 DLR(AD) 182; 10 BLD 17; (1947) A.C. 46 (PC) 56; (1940) A.C. 412; (1940) All. E.R. 425; Halsbury’s Laws of England, 3rd Edition, Vol. 15 Pagel68; 5BLD(AD) 54-Cited Section—115 Plaintiff having proved the contract, payment of full consideration and delivery of possession in part performance of the contract, the Railways or the Government is estopped from challenging the validity of the contract concluded with the plaintiff. Pronab Kumar Chakraborty and Others Vs. The Govt. of the Peoples Republic of Bangladesh and others, 14 BLD (HCD) 2. Section—115 Bangladesh Service Rules, Rule—9 Admittedly, the plaintiff was granted LPR on 31 May, 1990, but he gave representation to the Government for reconsideration of his age which was rejected on 30 August, 1990. Thereupon the plaintiff received all his dues upon retirement in September 1991. It is after that he brought the suit on 2 October 1991 challenging the memo dated 23 December 1989. These facts clearly show that the plaintiff had acquiesced in the decision taken by the Corporation about the date of his retirement and waived his claim for extension of service. Rule 9 of the Service Rules sets a bar to a change of the date of birth of the incumbent as recorded at the time of appointment. Bangladesh Agricultural Development Corporation (BADC) Vs Abdul Barek Dewan being dead his heirs: Bali Begum and others, 19 BLD (AD) 106. Ref: 36 DLR (AD)69: BCR1984(AD) 51; 1990(3) SCC 685(705) and (1972) AC1027— Cited. Section—1 15 Transfer of Property Act, 1882, Section—43 In order to find an estoppel, the representation i.e. a party’s declaration, act or omission must be clear, definite, unambiguous and unequivocal. The real state of things were known to both the parties namely the transferor and the transferees of the kabala and there is no proof of erroneous misrepresentation and as such there is hardly any scope of the operation of section 43 of Transfer of Property Act. Ali Akbar Khan Vs Gurudas Mondal and others, 19 BLD (HCD) 122. Ref: 1921 Cal. L. 3. Vol. 33 page 522; 6PLR 181, 43 DLR(AD) 87; 42 DLR 434- Cited. Section—115 Estoppel The action of the Local Revenue Officer in accepting the plaintiff and his successive predecessors-in-interest as tenants in respect of the suit property under the Government is binding on the Vested Property Department and the latter cannot claim the suit property as a vested property. The action of the A.D.C, (Revenue), who is the local administrative head of both the revenue department and the vested property department, allowed himself to be indulged in oppressive litigations and this was strongly deprecated. Additional Deputy Commissioner (Revenue), Narayanganj Vs A.K. M.Latiful Karim and others, 17 BLD (HCD) 249. Ref: (1949) 1 K.B. 227—Cited. Section—115 Estoppel To establish a case of estoppel or waiver it is essential to show that the party alleged to have waived his right acted in such a manner as to lead the other party to believe and act that such rights have been enforced. The essence of the act of estoppel lies in the fact that one party by his conduct has led the other party to alter his position. A case of estoppel has not been made out in the instant case. Md. Jahangir Kabir Vs Bangladesh, 16 BLD (AD) 85. Ref: 45 DLR 112; 42 DLR (AD) 189; A.I.R. 1984 (SC) 921; 18 DLR (SC) 354; Indian Appeals (189 1-92) Vol. XIX, page 203; Ambur Nair V.Kelu Nair, AIR 1933(PC)l67. Section—116 Estoppel of tenant and licensee Section 116 of the Evidence Act provides that neither a tenant/licensee nor anyone claiming through him can deny the title of the landlord! licensor after admitting his title at the beginning of the tenancy. Smriti Ranjan Das and another Vs. Bifan Behari Roy and anr, 14 BLD (HCD) 573. Ref: Ramdashi Paul Vs. Sarabala Dashya and others, 14DLR 810; Joykumar Datta and others Vs Sitanath Datta, 4 DLR 401—Cited. Section—138 Order of examination of witnesses— Examination-in-chief, cross-examination and re-examination Section 138 of the Evidence Act provides the order in which witnesses are to be examined, cross-examined, and, with the permission of the Court, re-examined. After a witness is sworn or affirmed, he is first examined by the party calling him. This is known as examination-in-chief, the object of which is to elicit from the witness all material facts within his knowledge relating to the party’s case. The adverse party has then the right to examine the witness and this is called cross- examination, the object of which is two-fold: to weaken, qualify or destroy the case of the opponent and to establish the party’s own case by impeaching the veracity, accuracy, credibility and the general value of the evidence given in examination-in-chief. This exercise has justly been described by the jurists as one of the principal and most efficacious tests for deciphering the truth. Where there is no ambiguity or there is nothing to explain in the statement of a witness, the prayer for re-examination with the sole object of giving a chance to the witness to undo the effect of cross-examination is not contemplated in law. Ihteshamur Rahman Vs. Most. Masuda Khatun and others, 18 BLD (HCD) 134. EVIDENCE ACT, 1872 Evidence Act, 1872 Section 8 – Evidence Act, 1872 Section 30 – Confessional statement of one accused cannot be the basis of conviction of non-confessing accused without corroborative evidence. Law is well settled that in a joint trial of a confessing accused and non-confessing accused for the same offence, the confession of a co-accused may be taken into consideration against non-confessing accused only along with for substantive evidance for the purpose of finding him guilty of the offence. Abdus Salam Mollah V The State 13 MLR (2008) (AD) 268. Evidence Act, 1872– Section 34 –Conviction can be based on one witness – There is no legal bar convicting an accused on the basis of evidence given by police personnel when the same appears to be trustworthy. Again conviction can well be based on the evidence of solitary witness if found reliable. Bayezid Hossain @ Bijoy Vs The State 11 MLR (2006) (HC) 263. Evidence Act, 1872 Section 114(g)– Non-examination of material witness and the adverse presumption against the genuineness of the prosecution case Convict-petitioner was convicted for the offence under section 19(3) of the Narcotics Control Act, 1990 and conviction and sentence were also affirmed by the Sessions judge in Appeal. The learned judge of the High Court Division set aside the order of conviction and sentence in view of absence of any evidence on record showing that the land wherefrom the ganja plants were recovered actually belongs to the convict-petitioner. Shasher Ali Vs. The State 12 MLR (2007) (HC) 38. Evidence Act, 1872 Section 114(g)– Non examination of material witness cited in the chargesheet raises adverse presumption. Conviction based only on the evidence of police personnel held unsafe. In the instant case the convict appellants were convicted and septet iced only on the evidence of police personnel. No independent witnesses were examined. Moreover the evidences were contradictory. The learned judges held the charge against the convicted appelants not proved beyond doubt and acquitted them. Uzzal and Golarn Rasul alias Mamun Vs. The State 15 MLR (2010) (HC) 311. Evidence Act, 1872 Section 114(g)– Adverse presumption for non-examination of material witness Onus of proving the charge against the accused beyond all reasonable doubt entirely lies upon the prosecution. Non-examination of material witness without satisfactory explanation raises adverse presumption against the prosecution case resulting in the acquittal of the convict-appellant on benefit of doubt. Linckon Dewan @ Dewan Nurul Huda Vs. The State 11 MLR (2006) (HC) 432. Evidence Act, 1872 Section 118–Child witness is competent when found capable of proper understanding. Telephonic conversation recorded leading to the arrest of the accused and recovery of the victim supported by ocular evidence can well form the basis of conviction. The conviction and sentence based on consistent and reliable evidence on record to the exclusion of any reasonable doubt affirmed by the High Court Division are held by the apex court perfectly justified. Jasimuddin and another Vs. The State 11 MLR (2006) (AD) 162. Evidence Act, 1872 Section 134 – No particular number of witness is required to prove the charge. Conviction and sentence may be based on evidence of a solitary eye witness. Section 27 –Statement of an accused in police custody leading to the recovery of incriminating material is admissible in evidence. Alibi taken must be established by the accused by producing convincing evidence. Code of Criminal Procedure, 1898 Section 164- Section—3 Video Cassette—Video cassette whether is a document and whether the same is admissible in evidence — Video Cassette is a document within the meaning of the Evidence Act and is accordingly admissible in evidence if otherwise relevant in course of a trial or proceeding — when sound recorded on a tape is admissible in evidence, the record of sound and picture should equally be admissible in evidence. Mrs. Khaleda Akhtar Vs. The State; 5BLD (HCD) 303 Ref. AIR. 1964 (SC) 72; AIR. 1968 (SC) 147; PLD l976 (SC) 57 (69) Cited. Section—8 Non-payment of rent whether relevant —Non-payment of rent alone will not extinguish or disprove a tenancy but when it is a question of the very existence of the status of a tenant, payment of rent would be relevant as the subsequent of the parties concerned. Sahabuddin Vs. Saluddin Talukder and others; 4BLD (HCD) 291 Section—13 Relevance of previous judgment — When a judgment, though not inter parties, may be admissible — Ordinarily a judgment cannot be used as evidence against a person who is a stranger thereto — But the judgment in a prior suit together with the plaint and other steps taken in connection therewith is evidence of an assertion by the holder of the judgment of the right which he claims to acquire and is then admissible in evidence of his right. Hazi Waziullah alias Waziullah Miah and others Vs. The Additional Deputy Commissioner (Revenue), Noakhali and Assistant Custodian, Vested and Non-Resident Property and others; 9BLD (AD)135 Ref. 21 DLR(SC)94; 2 C.W.N. 501; 58 Indian Appeals 125; A.I.R.1937(PC)69— Cited. Section—7 Admission— Value of admission made in the plaint of a previous suit which was withdrawn — In our law of evidence an admission made by a party in a plaint is admissible as evidence against him in other actions as well but such admission cannot be regarded as conclusive proof and it is open to the party to show that it is untrue. Abdul Kader Khan being dead his heirs All Akbar Khan and others Vs. Basek Khan being dead his heirs Shaju Bia and others; 8BLD(AD)22 Ref. A.I.R. 1967 (SC) 341; AiR. 1968 (Cal)550; (1952) 1 Macq 212: 8DLR3I I Cited. Section—20 Admission between the parties made in another proceeding — Such admission whether binds a party in a subsequent proceeding – Respondent’s admission that he was a tenant under the appellant estops him from denying appellant’s title in the suit premises — Admission by way of statements made in documents certified to be true copies by an authorised officer of the Government are admissible in evidence. Hajee Abdus Sattar Vs. Mahiuddin and others; 6BLD (AD) 224 Section—21 Admissibility of previous statement A party’s previous statement regarding a fact in issue is relevant and can be used against him if he has not appeared in the witness box at all — Even if the party appearing in the witness box is not confronted with his contrary previous admission, his such previous admission, if duly proved is admissible. Sultan Ahmed and others Vs. Mohammad Islam and others; 4BLD (HCD) 183 Ref: A.I.R. 1946 (Lah) 65 (PB); AIR. l957(AIl) 1(FB); AIR. 1966(SC)402 — Cited. Section—23 Admission made by a party in a letter written “without prejudice” — Admissibility of — The letter written by the appellant cannot be used to determine the extent of its liability, but in so far as it shows the relationship between the appellant and the respondent No. I as debtor and creditor and that they tried to settle the account, the letter can be taken into consideration. M/s. Haque Brothers (Carbide) Ltd. Vs. Bangladesh Shilpa Rin Sangstha and others; 5BLD (AD) 102 Ref. (1967) 72 C.W.N. 1 — Cited. Section—35 Entry in School Register — Its admissibility in evidence — Entry in School Register, Admit Cards and Board’s Certificate is that such Registers, Cards and Certificates are public documents, and are admissible in evidence, but the evidentiary value to be attached to the entries will vary from case to case. Abul Hashem (Bulbul) Vs. Mobarakuddin Mahmud; 6BLD (HD) 25O Ref. I.L.R. 14 (Lahore) 473; A.I.R. 1965 (SC)282 — Cited. Section—43 Findings of the Criminal Court are not binding on the Civil Courts — An order under section 145 Cr. P.C. cannot be treated as substantive evidence of possession — A judgment of acquittal in a criminal case only decides that the accused has not been found guilty of the offence with which he had been charged but the opinion and the conclusion expressed in the judgment are not admissible in evidence in civil Courts. Akhtar Hossain Sharif and others Vs. Munshi Akkas Flossain and others; 3BLD (AD)334 Section—43 Relevance of previous judgment — When a judgment, though not inter parties, may be admissible — Ordinarily a judgment cannot be used as evidence against a person who is a stranger thereto — But the judgment in a prior suit together with the plaint-and other steps taken in connection there with is evidence of an assertion by the holder of the judgment of the right which he claims to acquire and is then admissible in evidence of his right. Hazi Waziullah alias Waziullah Miah and others Vs. The Additional Deputy Commissioner (Revenue), Noakhali and Assistant Custodian, Vested and Non-Resident Property and others; 9BLD(AD)135 Ref.2IDLR (SC) 94; 2 C.W.N 501; 58 Indian Appeals 125: A.I.R. 1937(PC)69 — Cited. Section—43 Findings in the judgment of a criminal case — Whether can be relied upon in a subsequent civil suit between the parties — The findings and decision in a criminal case relating to the subject matter of the suit Scan n be relied upon — the fact that the accused was acquitted in a criminal case can be relied but not the opinion or conclusion expressed in such judgment. Md. Arshad Ali Vs. Abed Ali and other, 4BLD (HCD)150 Section—44 Benamdar — Whether a decree against a benamdar is binding on the real owner — Whether real owner can agitate in another suit that the decree obtained against his benamdar was fraudulent and not binding on him — It is now a settled principle of law that a decree on the ostensible owner is binding on the real owner — The plaintiff obtained the decree against the benandar fraudulently knowing full well that the real owner defendant was in possession — When a decree is obtained by the plaintiff practicing fraud it is not necessary to file a separate suit for avoiding such decree but the said decree can be impugned in another suit by such person aggrieved by such fraudulent decree — The real owner can avoid the transfer by his benamdar provided that no reasonable care was taken by the transferee in getting the transfer from the Benamdar — Transfer of property Act (IV of 1882) S.41. – Sultan Ahmed Vs. Md. Waziullah and others; 7BLD(HCD) 235 Ref. 24 DLR 63 — Cited. Section—44 Plea of Fraud—Under section 44 of the Evidence Act, whether it is competent for a party to a suit or proceeding to show that a document or a decree proved against him was obtained by fraud without having it set aside. Under section 44 of the Evidence Act it is competent for a party to a suit or other pro-ceeding to show in it that a document or a decree which has been proved against him by his adversary in that suit was obtained by fraud without having it set aside — When subsisting judgment, order or decree is set up by one party as a bar to the claim of the other, the latter can show that the judgment, order or decree was delivered by a Court without jurisdiction or was obtained by fraud, collusion and it is not necessary for him to have it previously set aside by a separate suit — A party to a proceeding is never disabled from showing that a document has been obtained by the adverse party by resorting to fraud. Abdul Gani Khan Vs. Shamser Ali and others; 12BLD (HCD) 90 Section—45 Expert’s opinion — Value of — Opinion of an expert, such as a hand-writing expert, is only a relevant fact — The Court will certainly consider the expert’s opinion but it is the Court which alone will come to its own conclusion regarding the matter — An expert’s opinion, particularly that of a handwriting expert, is always received with great caution. Ekias Khan and others Vs. Prajesh Chandra Das and others, 7BLD (AD) 142 Section—45 Assessment or evaluation of the evidence of hand writing expert — Requirements of law as to plaintiff’s obligation to prove his own case — Court to come to findings on assessment of the materials on record. Evidence of an expert witness is of very weak nature — The evidence and the opinion of the expert deserves consideration like any other evidence but such evidence has to be received with great caution — In assessing or evaluating the evidence of a handwriting expert on the question of genuineness of a signature, the following facts must be kept in view : (1) very few people sign in the same manner on all occasions. (2) expert opinion of the genuineness of the signature should be received with great caution, especially in a case when there is positive evidence of persons who saw a person sign. (3) all the test evidence by the expert in the matter of comparison of hand writing and signature is merely tentative in character. (4) Opinion is weak evidence. (ii) Law requires that the plaintiff must prove his own case to the hilt by cogent and sufficient evidence—He cannot succeed merely on the weakness of the defence — Disbelief of the defence case ipso facto does not make the plaintiff’s case believable. (iii) The Court is required to come to a finding on assessment of the evidence on record that the plaintiff has been able to prove his case — The plaintiff must prove his case with sufficient evidence to obtain even an expaite decree in his favour. Sheikh Salimuddin Vs. Ataur Raharnn and others; 11BLD (HCD)386 Ref. 7 BLD (AD)142; IODLR(PC)l; 25 DLR(SC)90; 3 BLD(AD)225 — Cited. Sections—45, 47, 67 and 73 Mode of proof of hand-writing or signature—It is well-known that the Evidence Act has provided for the following 4 modes for proving hand-writing or signature of a person in any document namely: (1.) By proof of the signature or handwriting of the person alleged to have signed or written the document by evidence vide section 67 of the Evidence Act. (2.) By the opinion of an expert who can examine and compare the handwriting or signature in a scientific process vide section 45 as the Evidence Act. (3.) By a witness who is acquainted with the handwriting or signature of the person by whom the same is supposed to be written and signed, vide section 47 of the Evidence Act. (4.) Also by comparison of the signature or handwriting of the person with his other admitted and proved handwriting on signature by the Court it self vide section 73 of the Act. In the instant case when it is the duty of the plaintiffs to prove the identity and genuineness of the signature of the petitioner in thealleged document, the plaintiffs may avail of any of the methods as enumerated above — He or they cannot be forced by the defendants to resort to any particular method of proving the alleged signature. Shree Dulal Benerfee alias Moni Vs. Shree Sharat Chandra Pal and another; 12BLD (HCD) 277 Sections—56, 78(6) and 85 Power of attorney authentic in foreign city—Power of attorney executed and authenticated by a Magistrate or Notary Public in a foreign country—Whether could be acted upon as a valid document in Bangladesh. If a notarial act is done in a foreign country by a foreign notary and there is reciprocal arrangement between Bangladesh and that foreign country, then by reference to section 14 of Notaries Ordinance and section 33of the Registration Act, those Notarial acts will be valid and the power of attorney admissible in Bangladesh. Nurunizessa and others Vs. Babar Ali Bepari and others; 1BLD (AD) 86 Section—64 Admissibility of newspaper report — Probative nature of such report — Although a newspaper is admissible in evidence without formal proof, yet the paper ipso facto is no proof of its contents — The newspaper cannot be treated as proof of the facts. Nurul Islam and others Vs. The State, 7BLD (HCD) 193 Ref. A.I.R. 1925 (Lahore) 299: A.I.R. 1961 (Pun) 215; AIR. 1951(SC)1376 — Cited. Section—57 Judicial Notice of a period of general dislocation — Momentous changes took place when Benches of the High Court Division were established outside the capital — the cases arising from Barisal were initially sent to the Jessore Bench and then after the establishment of the Barisal Bench, to Barisal — It was a period of general dislocation of which judicial notice should be taken. Mvi. Md. Keramat Ali and another Vs. Syed Munsur Ali and others; 11BLDAD97 Sections—64 and 65 Best evidence — The rule of evidence is that the best evidence which the case in its nature is susceptible should always be given — Primary evidence is the best evidence as it is that kind of proof which in the eye of law affords the greatest certainty of facts in question — Unless it is shown that the production of this evidence is out of the party’s power, no other proof of fact is generally admitted — Overall testimony to prove shortage of stay and stationery is inadmissible in evidence when documentary evidence to prove the same was available and purposely withheld. S.K. Abdul Majid Vs. The State; 7BLD (HCD) 413 Sections—65 and 66 Admissibility of certified copy of an application — Original called for from the custody of the person granting the copy bi the original not produced — In view of clauses (a) (c) of sections 65 and 66 of the Evidence Act the certified copy of the application is admissible in evidence. Indus Ali and others Vs. Abdul Jabbar Mia, 3BLD (HCD) 258 Section—65 Secondary evidence — Question of admissibility without formal proof — Though no objection was raised when the secondary evidence in the Photostat copy was produced, the party producing it was not exempt from explaining why its original was not produced — If the original is not available, the reason for non-availability must be given. Hazi Waziullah and others Vs. Additionial Deputy Commissionier, Noakhali and others; 9BLD (AD)135 Ref. 20 DLR (SC)205; — Cited. Section—65 Award in respect of a property — When cannot be considered — The original of the alleged award having not been filed in the Court the true copy of the alleged award cannot be considered. Chan Jun Talukder and another Vs. Ching Neshazy Magni and others, 9BLD (HCD)10 Sections—67 and 68 Presumption of genuineness of a registered kabala — In the absence of proof of its due execution a registered kabala by itself does not raise any presumption of its genuineness. Abdul Malek Sarkar Vs. Govt. of Bangladesh; 3BLD(HCD)1 70 Sections—67 and 68 Execution and attestation of a will — I-low is to be proved — Due execution of a will means not only that the testator executed it by putting his signature or affixing his mark but also it requires that the testator executed it in sound mind, fully knowing the nature and effect of his action — It must be proved that the testator had the testamentary capacity’ at the time he put his signature or thumb impression on the Will — The requirements of sections 67 and 68 of the Evidence Act must be fulfilled. Paresh Chandra Bhowmik Vs. Hiralal Nath and another, 4BLD (AD) 199 Sections—67 and 68 Proof of execution of a document — Whether Registrar’s endorsement is conclusive proof of execution — The certificate of a Registrar although raises a presumption as to the admission of execution by the executant yet such admission cannot be the evidence of due execution against third persons — The execution of a document is required to be proved in the manner provided by sections 67 and 68 of the Evidence Act. Abani Mohan Saha Vs. Assistant Custodian Vested Property and others; 7BLD (AD) 306 Section—73 Comparison of handwriting and signature by the Court — Court’s power to examine disputed signature is not restricted but the power should be exercised with great caution as an arbitrary exercise of the power may lead to miscarriage of justice Only in appropriate cases the Court may exercise its enabling power where the Court finds that the exercise of this power is necessary in the interest of justice. Syed Nurul Flossain and another Vs. Salema Khatun & another; 1BLD(HCD)474 Ref. 10 DLR 129; 49 C.W.N. 481; 26 C.W.N. 113; 64 C.W.N. 1067—Cited. Section—73 Comparison of handwriting by Court—Whether conclusion arrived at by comparison of hand writing or signature by the Courts below can be interfered with by the High Court Division in Second Appeal — Comparison of signature with admitted signature is a question of fact — High Court Division is not to interfere with the conclusion of the First Appellate Court on such question — Comparison of signature is a perfectly legal mode of proving hand-writing and, however inconclusive such proof may be, it cannot be considered as an error of law to base a conclusion on such proof alone — High Court in second appeal is not competent to set aside a finding based on such method — Code of Civil Procedure, l908(V of 1908) S. 100 (repealed). Abdul Matin Chowdhary Vs. Chapala Rani Sen and others; 5BLD (AD) 172 Section—73 Expert’s opinion—Whether it is better to have and come to a decision, particularly in case of L.T.L It is true that the Court itself can compare any signature or L.T.1. of any concerned person himself under section 73 of the Evidence Act and come to a decision, but it is better to have an expert’s opinion also, particularly in case of L.T.1. Sk. Abul Qasem and others Vs. Mayez liddin Mondal and others; 12BLD (HD) 161 Ref. 28 D.L.R. 123; A.I.R. 1928(P.C.)277 —Cited. Section—74 Comparison of signature or hand writing — Whether- Court should compare the disputed signature with the admitted signature to come to a decision — reliance by the lower appellate Court on his own comparison of the disputed signatures disregarding and in preference to the positive evidence by an expert is highly unsatisfactory, dangerous and imprudent in a judgment of reversal and such judgment without proper reasons results in an error in the decision on merits occasioning a failure of justice — Code of Civil Procedure, 1908 (V of 1908), S. 115. SK. Anseruddin and others Vs. Usha Raid Ghose; 6BLD (HCD) 26 Ref. A.I.R. I 928(PC)277; A.I.R. I 954(SC) 320; A.I.R. 1979 (SC) 14; 5BLD (AD) 172 —Cited. Section—74 Whether plaint of a suit is a public document — Whether certified copy of the plaint is admissible in evidence — The plaint of a suit as soon as it is registered by a judicial officer within the meaning of clause (iii) of sub-section (1) of section 74 of the Evidence Act and as soon as it forms part of the record of the judicial officer it is a public document. Certified copy of such document is therefore admissible in evidence. Reazuddin and another Vs. Azimuddin and others; 7BLD (HCD)16 Ref. 19 DLR349; PLD I 967(Lahore) 1051; A.I.R. 1940 (Mad)768; 36 DLR(AD)248; 27 DLR 398: 29 DLR(SC)268; 92 IC. 184 — Cited. Section—85 Authentication of power of attorney — A power of attorney duly authenticated raises the presumption that it was duly executed by the donor who has signed the instrument — The presumption unless rebutted, stands and the document can be admitted in evidence as a document executed by the persons alleged to have executed it, without any further proof — The defendant having failed to rebut the presumption plaintiff’s case stands. Md. Arshad Ali Vs. Abed Ali and others 4BLD(HCD)150 Ref. 30 DLR(SC)99; A.I.R. 1930 (Afl 524: A.I.R. 1971 (SC) 76; 1971(I) S.C. A. 136 —Cited. Section—85 Power of Attorney — Authentication of —Whether a power attorney, is to be authenticated for authorizing the attorney by a No-tary Public —- Whether a power of attorney duly executed and registered by the Si* Registrar can be used as a valid document Whether written statement filed by the attorney of the defendant on the strength of power of attorney duly executed by the defendant and registered by the Sub-Regisia can be accepted or the same is liable to b expunged — Section 85 of the Evidence raises a presumption as to the execution authentication of a power of attorney exec and authenticated by the executant and authority described in the section itself Although the power of attorney was authenticated by the Notary Public as request under section 85 of the Evidence Act the being duly executed and registered under provisions of the Registration Act is a document — Section 85 does not say the duly executed and a registered power of in Bangladesh is unacceptable and in document for reason of non-authentication Written statement filed by the attorney of defendant on the strength of such a attorney duly presented cannot be expunged Monindra Mohan Kar Vs. Ran Dutta and others. 7BLD (HCD) 275 Ref. 33 DLR(AD) 124— Cited. . Sections—91 and 92 Sections—91 and 92 Section—91 Kabalas under pre-emption under section 96 of the State Acquisition and Tenancy Act — recitals in documents are of out and out sale — no mention about any exchange or compromise. Section 91 of the Evidence Act will not bar any challenge as to the character of the disputed documents — But for that reason, the kabalas in question cannot be construed as instruments of exchange, simply because the ownership of the case land was not transferred for the ownership of any other land — State Acquisition and Tenancy Act, 1951 (XX VIII of 1951), S. 96. Abu Hassan (Minor) and others Vs. Basiruddin Ahmed and others; 11BLD (AD) 231, 12 BLD(AD)191 Section—101 Onus of Proof — in a case of disputed parentage — The onus is not on the defendant to prove the factum of marriage — The onus was clearly upon the plaintiff to establish that there was no marriage when the defendant proved acknowledgement in his favour — All the Courts below in the facts of the case misplaced the onus on the defendant for proving the marriage of Monwar Begum with Amir Ali Mia whereas the settled principle of law is that the person who denies it will have to establish it — it was for the plaintiff to prove that there was no marriage with Manwara as alleged — As such the concurrent findings of fact is no finding in the eye of law. Khorshed A lain alias Shah Alam Vs. Amir Sultan All Hyder and another 5BLD (AD) 121 Ref. 3 M.I.A. 295; 8 M.I.A. 836 and 11 M.1.A, 94; 561.A. 201; 51 C,W.N. 98—Cited. Sections—101 and 102 Onus — Onus on whom lies in a suit for specific performance of a contract for sale of property where the signatures in the documents regarding the contract are admitted by the defendants pleading that the same were obtained from them by threat, intimidation and coercion — Law does not require that all facts alleged by the plaintiff shall be strictly proved, for burden of proof is often lightened by presumptions, admissions and estoppels — Primarily onus, of course lies in a civil proceeding, upon the plaintiff — In this case primary onus has been discharged satisfactorily by the plaintiff — Then onus has shifted upon the defendants to prove their particular fact that their signatures were extorted — This onus they failed to prove — Consequently, the evidence adduced by the plaintiffs as to execution of the documents stands. Jabed Ali Mondal and others Vs. Jamini Kanta Dey and others, 7BLD (AD) 156 Section—101 Finding of fact—Finding of fact is ordinarily binding in a second appeal — Section 101 distinctly prohibits second appeal on a finding of fact based on legal evidence unless in the process of arriving at a finding of fact the Court has committed an error of law or a substantial error of procedure. Abdul Gaizi Khan Vs. Shainser Ali and others; 12BLD (HCD)90 Sections—101 and 102 Burden of proof — The onus of proving the genuineness of the signature and the questioned document is on the plaintiff. Shree Dulal Benergee alias Moni Vs. Shree Sha rat Chandra Pal and another. I2BLD (HCD) 277 Section—102 Onus of proof — Onus in a suit for his on whom declaring a heba-bil-ewaz deed in favour of the defendant was forged and without consideration. Initial onus was upon the plaintiff — Plaintiff having discharged that onus it shifted on to the defendant to prove that there was the intention for making the heba-bil-ewaz and that the consideration was paid — the onus of proving the formalities in connection with thedeed is upon the person who upholds the transaction. Montajur Rahman Vs. A.K.M. Mokbul Hossain and others; 5BLD (HCD) 18 Ref. 9 DLR (1957) Page 422 — Cited. Section—102 Burden of proof when special knowledge is involved — when the petitioner gives a list of dead persons and the opposite party does not controvert the same, the contents of the list are not proved — It is not the opposite party who maintains officially a list of dead voters — He does not have a special knowledge as to who are dead voters. Abul Hashern (Bulbul,) Vs.Mobarak Uddin Mahmud, 6BLD(HCD)250 Sections—102 and 103 Burden of proof — When both parties adduced evidence in order to set up their respective cases, the question of onus loses significance. Chinibash Pramanik Vs. Md. Nurul Hossain Mollah, 7BLD (AD) 103 Section—102 Onus Probandi — When onus is arbitrarily shifted and found not discharged — The plaintiff did not examine any independent witness in support of its case that the food supplied by the defendant’s canteen was not good — Trial Court arbitrarily shifted the onus on the defendant for proving its defence plea — The plaintiff therefore failed to bring its case home that he needed the tenanted premises for efficient management of the canteen — Premises Rent Control Ordinance, 1963 (XX of 1963), S. l8(l)(E). M/s. Channel Cinema Ltd. Vs. Chowdhury Golain Malek; 10BLD (AD,)82 Section—103 Burden of proof — Onus of proof that the left-out co-sharer has no subsisting right of pre-emption is upon the pre-emptor — State Acquisition and Tenancy Act, 1950(XXVIII of 1951), S. 96(2). Md. Abdul Jalil Vs. Durjan Ali alias Siddique Hossain and others, IBLD(’AD,) 241 Section—111 Burden of proof — Pardanashin Lady — Burden lies on the person who claims benefit under a deed executed by a pardanashin lady to establish that the deed was executed by the pardanashin lady after clearly understanding the nature of the transaction — The burden lies not only on the receipient of the deed, but also upon the transferee from the beneficiary. Mst. Rokeya KhatunVs. Aljan alias Aljan Bepari and others; 2BLD(4D)139 Ref. 52 l.A. 342; A.I.R. 1928 (PC) 303; A.I.R. 1940 (PC) 1,34 — Cited. Section—111 Burden of proof — Pardanashin lady — Protection given to pardanashin lady by the special rule of onus will extend to her legal heir — If the person upon whom the property of the pardanashin woman devolves by operation of law, and who, in the facts of the case, represents her can challenge the legality of disposition. Mst. Rokeya Khatun Vs. Aljan alias Alijan Bepari and others; 2BLD (AD) 139 Ref. 33 DLR (AD) 1 — Cited. Section—111 Hiba-bil-Ewaj—Question of absurdity of the reason for Hiba-bil-Ewaj — Special rule on onus of proof devised to protect a pardanashin lady need not be understood to create disability in her right to deal with her property — When the final Court of fact is satisfied that the questioned document is beyond suspicion, no further examination of the document is called for. Jahura Khatun and another Vs. Md. Nurul Momen and others; 2BLD (HCD) 165Ref. 70 C.L.J. 402: A.LR. 1940 (PC) 134: 45 C.W.N. 259; 82 C.L.J. 26; 59 C.W.N. 147; 6 DLR 202; 33 DLR (AD) 1; A.I.R. 1919 (PC) 24; — Cited. Section—111 Pardanashin Lady — Discharge of special onus by the recipient of the document from a pardanashin lady — Without making any pleading that the executant was a pardanashin lady and she could not comprehend and understand the transaction there was no special onus upon the recipient of the kabala to prove that the document was a bonafide one and the executant understood and comprehended the transaction and that she had independent advice before she executed the kabala, Noad Chand Vs. Mst. Hjssain Banu and others; 6BLD (HCD) 173 Ref. A.I.R. 1956 (SC)593; A.LR. 1966 (SC) 635; 34 LA. 27: A.I.R. 1930(Sind) 25; 33DLR (AD) 1; 34 DLR(AD)266; A.I.R. 1930 (PC) 57; 28DLR(AD)57; A.I.R. 1920 (PC) 65 — Cited. Section—111 Pardanashin and illeterate lady — Execution of deed by her — Onus on whom that she had independent and disinterested advice at the time of execution and registration of the sale deed — Mere reading over and explaining of the contents of the deed will not meet the requirement of law — Onus is on the vendee to prove that independent and disinterested advice in the matter was received by her — The party relying on a document executed by an illeterate pardanashin village woman must satisfy the Court that not only the deed was read over and explained to her but also to prove that she understood the contents and that she got independent and disinterested advice in the matter. Rangbi Bewa Vs. Md. Abed Ali and others; 7BLD(HD)319 Ref. 26 C.W.N. 517(DB). Section—1 14 (e) Public Notice — Presumption of service of such notice — Public notice for acquisition of property being an official act a presumption is available under the Evidence Act that it has been regularly performed unless the contrary is proved — Emergency Requisition of Property Act (XIII of 1948), S. 5(1). Government of Bangladesh, represented by the Deputy Commissioizer, Dhaka and others Vs. Basharatultah being dead his heirs and successors: Fade Karim and others; 1OBLD (AD)11O Section—114 Presumption of Judicial or official Acts—Whether illustration (C) of the section provides that all acts are presumed to have been rightly and regularly done. Illustration (C) of section 114 of the Evidence Act provides that all acts are presumed to have been rightly and regularly done — This presumption applies to judicial as well as to official acts — Where judicial or official act is shown to have been done, it is presumed to have been done rightly and regularly complying with the necessary requirements. Md. Akhtar Hossain Vs. The Governinent of the People’s Republic of Bangladesh and others; I2BLD (HCD,) 541 Section—114(e) (f) Service of notice u/s. 106 T.P. Act — Notice sent by registered post and returned with endorsement “refused” — Notice presumed to be served — Examination of peon to prove the endorsement is not necessary — Mere denial of the tenant that he did not receive the notice or that the notice was not tendered to him is not sufficient to rebut the presumption — General Clauses Act, 1 897 (X of 1897) Dr. Jainshed Bakht Vs. Md. Kainaluddin, 1BLD (HCD) 97Ref. A.I,R. 191 5(Cal)3 13; 39C.W.N. 934; 51C.W.N. 650; 52 C.W.N. 659; 6 DLR267; A.I.R. 1918 (PC) 102; A.I.R. 1958 (Cal) 251; 22 DLR 664; 17 DLR(WP)26—Cited. Section—114 Reserved Forest — Whether in the absence of notification under the Assam Forest Regulation or Forest Act nature of the forest land under the Forest Department as ‘reserved forest’ is affected — Even assuming that the defendant Forest Department did not acquire any title in the suit land of the forest as no subsequent notification required under section 17 of the Assam Forest Regulation VII of 1 891 or under section 20 of the Forest Act, 1927 was issued, even in that case, the possession of the Forest Department in the lands of the notification Ext. A is not denied or disputed and the long possession of the Forest Department is a fact — So under section 114(e) and (f) of the Evidence Act there is presumption that notification under section 17 of the Assam Forest Regulation was duly made -— Forest Department has got title and possession in the suit land or at least a better title and prior possession than thoe of the plaintiff—Assam Forest Regulation (VII of 1891). S. 17. Kanglu Khasia Vs. Divisional Forest Officer and others; 7BLD(HCD)96 Section—115 Estoppel — Plaintiff’s karsha right sold in auction — Defendants claiming kol-karsha right setting aside the auction sale under section 174(3) of B.T. Act impleading the plaintiff in the proceeding — Plaintiff is estopped from denying defendant’s kol-karsha. Sunil Kumar Biswas Vs. Mohammad Idris and others, 1BLD (AD)367 Section—115 Estoppel — Series of litigation’s between the parties ultimately concluded by a compromise decree — Defendant gave up his claim of Tk, 1000/- as a consideration of compromise — Subsequent suit which in effect is directed against the compromise is hit by the principle of estoppel. Abdul Mujib Chowdhury Vs. Syed Abdul Mutalib and others; 1BLD (HCD)467 No estoppel against Statute — Whether this rule of law can be invoked by one to takes advantage of his own fraud — The rule is attracted only when its invocation will defeat the public policy behind a Statute — If, in disregard of the obligation imposed by section 75A upon the landlord he has alienated his land he cannot subsequently raise an objection to nullify his own action — The plaintiff- appellant has filed the suit certaintly not for the benefit of the Government, nor is there any reason to suppose that the statutory provisions would be nullified if the declaration sought for is not granted — If he is allowed to succeed he would be enabled to take advantage of his own fraud. Sree Sudhir Chandra Saha and another Vs. Matiran Bewa, being dead her heirs Nazmul Rahrnan Sarker and others; 6BLD (AD) 182 Ref. A.I.R. l937 (PC)1 14; (1903)30 l.A. 114; (l964)I6DLR(SC)685 —Cited. Section—115 Right of Pre-emption — Whether barred by acquiescence and estoppel — When the pre-emptor negotiates the sale under pre-emption or the facts are such that his acquiescence can be safely concluded, the doctrine of estoppel comes into full play — His conduct will be a bar even though he files his application for pre-emption in a statutory right — State Acquisition and Tenancy Act, 1950(XXVIII of 195 1),S.96. Moulana Abdul Karim Vs. Nurfahan Begum and others; 6BLD (HCD) 125 Ref. A.I.R. 1968(SC) 933; PLD 196 l(SC)436(444); 22 DLR 449; A.I.R. 1947 (Oudh)81; A.I.R. 1951 (Nagpur) 451; AIR. 1950(Madhya Bharat)85; A.I.R. I 925( Lahore)57; A.I.R. 1928(P.C.)190— Cited. Section—115 Resignation from service — Employee of Biman Bangladesh Air Lines resigning with immediate effect allowed to resume his duties — Whether the employer in such a position waived its right to continue the services of the employee — When a permanent employee, as in the present case resigns with immediate effect the employer is required neither to accept nor to reject the resignation — The question of acceptance or refusal of resignation arises only when the employee gives a notice of resignation — Since the petitioner resigned with immediate effect, he has only to surrender his pay in lieu of notice period — But by allowing the employee to resume his duties from 4.8.87 the employer literally waived its right to discontinue his service — It is as if the employee has not taken any notice of the letter of resignation and thus caused the employee to believe that he was still in service — the employer was therefore estopped by its conduct from saying that the employee was no longer in service — Bangladesh Biman Corporation Employees (Service) Regulations, 1979, Peg. 53. M.A. Mannan Vs. Biman Bangladesh Air Lines, 9BLD(HCD)516 Section—115 Promissory Estoppel — Principle of When a party acts upon Government assurance, the latter is estopped from denying such position particularly when there is no formal contract executed between the parties and a right vests in him. There was acute shortage of sugar in the country and the government encouraged the importation of sugar under Wage Earner’s Scheme exempting so much of customs duty and sales tax leviable thereon as in excess of 50% and 10% respectively — The importer respondent imported sugar acting upon assurance of the Government — the subsequent notification dated 6. 11 .84 withdrawing confessional rate with retrospective effect can have no operation when a right has vested in the importer inasmuch as the respondent had acted upon assurance that the favourable terms mentioned in the notification dated 16.10.1984 will be applicable to him — He acted upon his assurance and now the Government cannot fall back upon it and say LriZ he will have to pay customs duty at the rate that prevailed on 16.11.1988, which reduced the exemption —- This is clearly a case of as the respondent had acted on the assurance given by the Government and a right vested in him could not be taken away. The Collector of Customs, Customs House, Chittagong and others Vs. Mr. A. .Hannan, 1O BLD (AD) 216 Section—115 Estoppel — Bar of estoppel when not applicable — Once a candidate is declared Chairman by notification in the official Gazette he acquires a legal status and by his subsequent conduct, it cannot be said, he created an estoppel against statute itself. Hazrat Ali Vs. Election Commission and others; 10BLD (HCD)157 Section—115 Estoppel-Under the Retirement Rules, 1968, the word ‘competent authority’ has been defined as the authority competent to make appointment of such service — From the definition, it is clear that the competent authority to make appointments in Barisal Pourashava is the executive head, namely the Chairman. Since the appointment of the petitioners was made by the then Chairman of the Pourashava and since the petitioner joined their services on the basis of those appointment letters and rendered 12 years uninterrupted service their appointment cannot now be said to be made irregularly and, if any irregularity was there initially, it has been cured by lapse of time. Kanaklata Halder and others Vs. Barisal Pourashava and another 10BLD (HCD) 381 Section—116 Tenant’s estoppel — It is founded upon a contract — when a person enters into possession of immovable property as a tenant of another person then neither he nor any body claiming though him shall be permitted during continuance of the tenancy to deny the land-lord’s title however defective that title might be. Hajee Abdus Sattar Vs. Mahiuddin and other. 6BLD (AD) 224 Ref: 49 l.A. 299; A.LR. 1933 (PC)29 — Cited. Section—116 Estoppel — Estoppel against a tenant — A tenant during his possession is estopped from denying that the landlord who let him into possession had no title at the time entry — The estoppel is however restricted to denial of the title at the commencement of the tenancy — It is open to the tenant even without surrendering possession to show that since the date of commencement of tenancy, the title of the landlord came to an end or that he has been evicted by the paramount title holder — The defendant is estopped from questioning or denying the exclusive title of the plaintiff landlord who let him into the possession of the suit property at the beginning Of the tenancy. Fazal Kariin Vs. Sree Dulal Kanti Baidya and another; 6BLD (HD) 1O5 Ref: A.I.R. 1913 (PC) 96; AIR. l935(PC)59; A.I.R. 1966 (SC) 629;— Cited. Section—145 Admissibility of previous statement — A party’s previous statement regarding a fact in issue is relevant and can be used against him if he has not appeared in the witness box at all — Even if the party appearing in the witness box is not confronted with his contrary previous admission, his previous admission, if duly proved, is admissible. Sultan Ahmed and others Vs. Mohammad Islam and others; 4BLD (HCD) 183 Ref. A.I.R. I 946(Lahore) 65(FB); A.I.R. 1957 (Allahabad) I (F.B); A.I.R. 1966(SC) 402—Cited. Section—145 Recital in kabala — Question of admissibility — Plaintiff is not an executrix the kabala, she is a mere recipient of it — The recital of kabala per se shall not go into evidence unless the person who has made such recital raises any objection there for. Feroja Khatoon Vs. Brajalal Nath and others; 10 BLD (HCD) 218. EVIDENCE ACT 1872 EVIDENCE ACT 1872 (1 OF 1872) Section—3 Confession of a co-accused—it does not come within the definition of ‘evidence’ as contained in section 3 of the Evidence Act. It may however lend assurance to other evidence. Dula Mia alias Nurul Islam Vs The State 14 BLD (HCD) 477 Section—3 Confession of a co-accused is no evidence against other accused persons and the same cannot be made the sole basis of conviction of others. The Court can however consider the same to lend assurance to other independent evidence on record. The State Vs. Md. Musa alias Musaiya alias Shafir Bap 15BLD (HCD)169 Sections—3 and 30 Confession of a co-accused It is now well-settled that the evidentiary value of a confession, particularly of a retracted confession by a co-accused is nil in the absence of strong, independent and corroborative evidence. Faruk Mahajan and others Vs The State, 17BLD(HCD)15 Ref: 16DLR558;1983BLD325; PLD1960 (WP)Karachi 817; 1984BLD(AD)193—Cited. Sections—3 and 30 It is an accepted proposition of law that the confession of a co-accused is no evidence against the other accused within the definition of section 3 of the Evidence Act. The purport of section 30 is that the confession of a co-accused can only be used to lend assurance to other evidence which by itself must be sufficient to support a conviction. Abdul Awal and others Vs. The State, 14 BLD (HCD)187 Ref: 1952 S.C.R. (India) 526—Cited. Sections—3 and 30 Confession of co-accused The confession of an accused is no evidence against the co- accused under section 3 of the Evidence Act. Under Section 30 of the Evidence Act the confession of an accused can be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. The State Vs. Tajul Islam and 8 others, 15BLD(HCD)53 Sections—3 and 30 Confession of a co-accused Even if the confessional statement of one accused is found to be true and voluntary, still his confession cannot be used against those who are co-accused in the case, as the basis for convicting them when there is no other evidence against them. Dr. Ishaq Ali Vs. The State (1993) 13BLD (HCD)236 Ref: 5DLR 369; 18 DLR (West Pakistan) 112—Cited. Section—5 The evidence of interested, inter-related and partisan witness Their evidence must be closely scrutinized before it is accepted. The correct principle in respect of the evidence of persons falling in the category of interested, interrelated and partisan witnesses is that it must be closely and critically scrutinized. It should not be accepted on its face value. Since interested witnesses may have a motive of falsely implicating the accused persons, their evidence has to cross the hurdle of critical appreciation. As their evidence cannot be thrown out mechanically because of their interestedness, so their evidence cannot be accepted mechanically without a critical examination. The rule that the evidence of interested witnesses requires corroboration is not an inflexible one. It is a rule of caution rather than a rule of law. The High Court was obviously wrong in holding that no corroboration was necessary in this case and failed to scrutinise the evidence of interested eye-witnesses with infirmities in their evidence. It is unsafe to rely on such evidence for sustaining a conviction on a capital charge without corroboration, either circumstantial or ocular. (Per. Mustafa Kamal, J delivering the majority judgment) There is no rule of law that if independent witnesses are not available in a case, a conviction cannot be sustained on the evidence of eye witnesses who are relations and partisan witnesses. If found to be trustworthy, conviction can be based on the evidence of such interested witnesses. When both the parties are equally powerful and divided in two hostile groups, at the present day no body likes to involve himself in a group rivalry between two strong factions of people. In such a case, it is indeed difficult for the prosecution to examine independent witnesses as the villagers would be reluctant to side with any of the parties who had longstanding enmity and rivalry between them. Furthermore, the witnesses as well as the accused being interrelated amongst themselves and enemically disposed of towards one another, it was difficult for the prosecution to examine independent witnesses. Moreover, it does not appear from the record that any independent witness who had seen the occurrence & was withheld by the prosecution to find fault with it. (Per Latifur Rahman,.J-delivering dissenting judgment) Nowabul Alam and others Vs The State, 15 BLD (AD) 54 Section—8 Abscondence of the accused—Abscondence of the accused during the trial may be a circumstance for giving rise to an adverse presumption against him and but it can never be the sole basis of conviction. The court acted illegally in putting the burden of disproving the charge upon the accused person. Abdus Salam Vs. The State, 14 BLD (HCD) 99 Section—8 It is a settled principle of law that an accused is not supposed to prove or disprove anything and the onus lies on the prosecution to prove its case. The learned Special Judge was wrong in convicting the appellant simply on the ground that he was absconding and did not appear to face the trial or to refute the charges Md. Jamsed Ahmed Vs. The State, 14 BLD (HCD)301 Section—17 Statement in writing made by the accused before respectable persons who are not police officers, clearly admitting therein bringing into Bangladesh of a huge quantity of gold without any valid authority though may not amount to confession proper but nonetheless it is a clear admission by the accused of his misdeed under section 17 of the Evidence Act. The trial Court was right in accepting this admission along with other evidences in establishing the guilt of the accused. Md. Shaft Vs. The State, 14BLD (HCD) 322 Ref: 10 DLR(WP)55; 45 DLR(AD) 113—Cited Section—24 Extra-Judicial confession By its very nature it is a very weak type of evidence. It is unsafe to base conviction of an accused on his extra-judicial confession alone. The value of such confession as evidence depends on the veracity of the witnesses to whom it is made. In a case of such confession material corroboration of evidence of unimpeachable character is required. In the instant case there is no ocular evidence of the occurrence except the testimony of P.W.8 Md. Habibur Rahman who also did not disclose the name of the condemned prisoner to the P.W. 1 informant, or to anybody after the killing or also at the time of lodging the first information report. Although it has been stated by some of the witnesses that condemned prisoner Hasen Ali made extra-judicial confession admitting the killing of the victim the allegation of making the extra- judicial confession has become, uncertain and without any corroboration and as such it is unsafe to base a conviction on the basis of the said extra judicial confession. The State Vs. Hasen All, 19BLD (HCD) 419 Sections—24, 30 Retracted confession A retracted confession requires independent and reliable corroboration before it is accepted and acted upon. Dula Mia alias Nurul Islam and others Vs. The State, 14BLD(HCD)477 Section—30 Section—30 Section 30 of the Evidence Act provides that the confession of a co-accused can be taken into consideration to lend assurance to other substantive evidence on record but it never says that such confession amounts to proof. In the instant case, there being no substantive evidence, either direct or circumstantial, implicating the appellant in the alleged murder or in the abetment of the same except as to some evidence about the motive of the offence, the High Court Division was wrong in treating the confessional statement of the co-accused as substantive evidence and treating the evidence of P.Ws. 4 and 7 as corroboration thereof. Ustar Ali Vs. The State, 18BLD (AD)43 Ref: 1LR76 Indian Appeals 147; 27DLR 29; 44DLR(AD) 10—Cited. Section—30 Confession of co-accused- Section 30 of the Act provides that the confession of a co-accused can be taken into consideration to lend assurance to other substantive evidence on record but it never says that such confession amounts to proof. In the instant case, there being no substantive evidence, either direct or circumstantial, implicating the appellant in the alleged dacoity or in the abatement of the same except as to some evidence about the motive of the offence, the trial Court was wrong in treating the confessional statement of the co-accused as substantive evidence against the appellant. Mojibar Vs The State, 20BLD(HCD)273 Ref: Ustar Ali Vs. The State, 18BLD (AD) (1998)43: 3BLC(AD)53; Bhuboni Safer Vs. The King, 1LR76 Indian Appeals 147; Lutfun Nahar Vs. State, 27DLR29; Babor Ali Mollah Vs. State, 44DLR(AD)10 ; 2DLR (PC) 29—relied. Section—30 Section—32(1) Dying declaration It is alleged by the defence that P.W.1 admittedly not a witness of the occurrence implicated the accused persons out of enmity at the instance of P.W.4 who during cross- examination himself stated categorically that before going to the thana for lodging F.I.R. he consulted the matter with the informant PW. 1 which lends support to the defence version that the accuseds have been falsely implicated in the case in collusion with him. It is also in the evidence of P.W.5 that regarding dying declaration alleged to have been made by the deceased on query to her wife but Mobessera did not say that she reported the matter to P.W. 1 before going to thana for lodging F.I.R. Moreovor the daroga deposed that she did not state to him that her husband the victim told her the names of the accused persons or she saw them running away. This statements are also absent in the first information report. Moreover the principal accused Kamrul Islam have been acquitted by another Bench of the High Court Division disbelieving the prosecution story in Criminal Appeal No. 605 of 1995. Liton Vs The State, 20BLD(HCD)219 Section—32(1) In the instant case, there are two dying declarations made by deceased Hatem Ali Sikder and in both the dying declarations he mentioned the names of the appellants. The second dying declaration being nearer to death, the High Court Division believed the same and acted on it. Moreover, P.Ws 4 and 7 in clear terms mentioned the inflicting of injuries by the appellants on the person of the deceased, which is supported by the medical evidence. The High Court Division ought not to have rejected the evidence of these two witnesses merely on the ground that they were not disinterested witnesses, notwithstanding the fact that the defence failed to shaken their credibility in cross-examination. The order of conviction is maintained. Samad Sikdar Vs. Md. Abdul annan Sikder, 17BLD(AD)239 Section—32 (1) Dying declaration—Conditions for acceptance Three conditions will have to be fulfilled before a dying declaration is acted upon. The first condition is whether the victim had the physical capability of making the statement. Secondly, whether the witnesses heard the statement correctly and reproduced the names of the assailants correctly in the Court. Thirdly, whether the maker of the dying declaration had the opportunity to recognise the assailants correctly. Md. Abul Kashem Vs. The State, 15BLD (HCD)205 Section—32(1) Statement of a dead person when relevant? Statement, written or verbal, of relevant facts, made by a person who is dead is relevant when the statement is made by a person as to the cause of his or her death in cases in which the cause of that person’s death comes into question. The State Vs. Abdul Khaleque, 13BLD (HCD)354 Ref: PLD 1956 (FC)43=8 DLR (FC) 24; BCR 1982 (Special Bench )344; 12 BLD 49; 40 DLR(AD)281; 21DLR(SC)89=PLD 1969 -SC 89; Pakala Narayan Swami Vs. The King Emperor (1939)56 Indian Appeals 66 (76); 27 DLR (AD) 29—Cited Section—80 Examination of the recording Magistrate It dispenses with the necessity of a formal proof of a confession duly recorded by a Magistrate in accordance with the provisions of section 164 of the Code of Criminal Procedure. In such a case the examination of the recording Magistrate is not imperative. The State Vs. Tajul Islam and 8 others, 15BLD(HCD)53 Section—32(1) Dying declaration A dying declaration if believed can alone from the basis of conviction, as it is a substantive evidence under section 32 of the Act. In the instant case the dying declaration was duly recorded by a competent Magistrate who proved the same before the Court. The dying declaration was recorded on 22.5.1989 and the victim died on 15.6.1989. The intestine of the victim came out and he was operated upon immediately. Thereafter on the requisition of hospital authority the dying declaration was recorded by a competent Magistrate which shows critical condition of the victim. Moreover the victim himself corroborated, it by saying that he could not speak further and there- fore merely because the victim died some days after recording the dying declaration will not render the dying declaration inadmissible under section 32 of the Act. The State Vs Akkel Ali and ors, 20 BLD(HCD)484 Section—80 Memorandum by Magistrate conducting TI. Parade—Not admissible in evidence Memorandum recorded by the Magistrate conducting T.I. Parade is not a judicial proceeding and as such it is not admissible under section 80 of the Evidence Act, unless the Magistrate deposes before the Court and proves it. Non-examination of the Magistrate who held the T.I. Parade renders the memorandum drawn by him inadmissible in evidence. Md. Mizanur Rahman alias Miza alias Mizan Vs The State, 17BLD(HCD)82 Section—101 Burden of Proof In a criminal case the onus of proving the charge against an accused lies on the prosecution. The prosecution must prove its case beyond reasonable doubt and the accused has no obligation to account for the death of the victim for which he is placed on trial. But when the murder of the wife of the appellant takes place in his house while she was living with him in the same house, the accused owes a duty to explain as to how his wife has met with her death. Ali Hossain Vs. The State, 15BLD (HCD)307 Sections—101 and 106 The burden of proving the manner of the incident as alleged by the prosecution lies squarely on the prosecution and it never shifts. If the manner of the incident is not proved, the prosecution must necessarily fail, no matter, whether the defence version of the case has not been proved either. In order to bring a case within the ambit of section 106 of the Evidence Act, ‘special knowledge” of relevant facts must be attributed to the accused persons in respect of commission of the offence. Only in such exceptional cases the burden of proving those facts is shifted to the accused persons for dispelling special knowledge’ in the commission of the offence. Kawsarun Nessa and another Vs. The State, 15BLD(HCD)21 Sections—102 Burden of Proof The gravity of the offence or its heniousness is no ground in determining the guilt of the accused. For securing conviction the prosecution must prove its case by cogent and legal evidence. The guilt of the accused cannot be said to have been established only with reference to the statements made in the FIR, it never being substantive evidence. The State Vs. Md. Habibur Rahman Khan, 17BLD(HCD)527 Section—102 Burden of proof In our criminal jurisprudence the burden of proving the guilt of the accused lies squarely on the prosecution and it does not ordinarily shift on to the accused, yet, in anticorruption cases under the Criminal Law Amendment Act, 1958 certain burden has been thrust upon the accused to account for the goods and properties entrusted to him. In the instant case the defence miserably failed to discharge that onus to dispel the effect of the overwhelming evidence on record proving the guilt of the accused beyond reasonable doubt and as such there is no substance in the instant appeal and accordingly it fails. G. M. Nowsher Ali Vs. The State, 19BLD (HCD)1 77 Section—106 Burden of proving fact especially within the knowledge of any person—Alibi in a quasi-criminal proceeding Even in a quasi-criminal proceeding if a plea of alibi is taken the burden to prove it is on the person who takes such a plea, because that fact is within his special knowledge. The petitioner had opportunities to prove his absence from the country since 1982 at the trial Court, the lower appellate Court and the High Court Division but he did not avail of the opportunities. Even before the Appellate Division the petitioner failed to produce any proof in support of his plea of alibi. Under such circumstances the petition merits no consideration. Md. Abdul Tahid alias Tahid Ulla Vs. Md. Kadaris All, 16BLD(AD)248 Section—106 Murder of wife—Alibi of the husband— Presumption The accused and his wife were sleeping in the same bed. The wife died due to multiple injuries on her person. In such circumstances a heavy burden is cast upon the husband to satisfactorily explain as to how his wife died. Gouranga Kumar Saha Vs The State, 17BLD(HCD)259 Section—114 (g) Adverse presumption Unless it is shown that the witnesses named in the charge sheet were material witnesses in the case, no adverse inference against the prosecution should be drawn under section 114(g) of the Evidence Act for non-examination of all those witnesses. Md. Reazuddin Sardar alias Md. Reazuddin and others Vs. The State, 14BLD (AD)178 Section—114(g) Non-examination of important witnesses, particularly some of the neighbours, without reasonable explanation raises a presumption against the prosecution to the effect that had they been examined, they would not support the prosecution case. Benefit of doubt—Even if there may be elements of truth in the prosecution case against the accused, that by itself is not sufficient for conviction. Between “may be true” and “must be true” there is inevitably a long distance to travel and whole of the distance must be covered by the prosecution by legal and reliable evidence. Dula Mm alias Nurul Islam and others The State, 14BLD(HCD)477 Section—114(g) Non-examination of independent witnesses, especially some of the close neighbours, calls for a presumption under section 114(g) of the Evidence Act to the effect that had they been examined they might have deposed against the prosecution. Kawsarun Nessa and another Vs. The State, 15BLD(HCD)21 Ref: 25 DLR 398; AIR 1936 (All) 833; 41DLR(HCD) 349; 31 DLR (AD) 75—Cited. Suggestion by the defence lawyer Suggestion by the defence lawyer cannot be construed as admission of guilt by the accused. The accused is not required to prove his innocence. The prosecution must prove his guilt beyond reasonable doubt. Dula Mia alias Nurul Islam and others Vs. The State, 14BLD(HCD)477 Ref: 27 DLR(AD)29; 44DLR(AD) 10, I.L.R. .76 Indian Appeals 147; 12 DLR (SC) 156; 12DLR (SC) 217; 36 DLR 185; 16 DLR 147; 45 DLR 171; A.I.R. 1939 (PC) 47; 25 DLR 399; A.I.R. 1957 (SC)107; 6BLD(AD)1— Cited Section—114(g) Although law does not require that all the chargesheeted witnesses will have to be examined at the trial but nevertheless when the prosecution withholds material witness and fails to examine natural witnesses from the vicinity of the place of occurrence without any explanation, it casts a serious reflection on the prosecution case. Under such circumstances an adverse presumption under section 114(g) of the Evidence Act should be drawn against the prosecution. Momin alias Md. Mominul Huq Vs The State, 16BLD(HCD)246 Section—114(g) The Court may presume existence of certain facts When the alleged occurrence took place in broad daylight on a busy pathway and the prosecution failed to examine even a single witness from the neighbourhood and furnished no cogent explanation for non- examination of such witnesses adverse presumption under section 114(g) of the Evidence Act must be drawn against the prosecution. Md. Alamgir Hossain alias Alaingir Hossain and another Vs. The State, 16BLD(HCD)270 Section—114(g) Non-examination of the Investigation Officer Non-examination of the Investigation Officer prejudices the defence and deprives the accused of an opportunity of cross-examining him as to the manner and method of the investigation that leads to the submission of two charge-sheets on the self-same occurrence. Abdus Sobhan Howlader and others Vs. The State,13BLD(AD)131 Ref: 40 DLR(AD) 282—Cited Section—114 (g) Presumption against the prosecution for withholding witnesses and evidence When the prosecution did not examine the doctor who held postmortem examination, the investigation officer and other charge-sheeted material witnesses without satisfactory explanation, adverse presumption under section 114(g) of the Evidence Act must be drawn against the prosecution. Munsurul Hossain alias Babul Vs The State, 16BLD(HCD)326 Ref: 36 DLR 333; 28DL R 128—Cited. Section—114 (g) In this case admittedly there are dwelling houses on all sides of the place of occurrence but no owner of these dwelling houses was examined in this case by the prosecution without any explanation. Non-examination of these natural, probable and disinterested witnesses calls for an adverse presumption against the prosecution under section 114(g) of the Evidence Act. Tomezuddin Biswas alias Kalu and another Vs The State, 17BLD(HCD)174 Ref :40DLR348; 1 1BLD(1991)23 1—Cited. Section—114 (g) Benefit of doubt The evidence of P.W.2 Mona corroborated by the Medical Officer PW 3 and informant P.W I to the effect that accused Paltu caught hold of victim Kafi while accused Ashraf struck an iron rod blow on his chest was not accepted by the High Court Division in view of this fact that P.W.2 omitted to state the fact in his statement before the Investigating Officer. The State Vs. Ashraf Ali and others, 14BLD(AD)127 Section—114(g) Benefit of doubt When from the evidence of the handwriting expert it is clear that the three disputed cheques, on the basis of which moneys were withdrawn, were in the hand-writing of the accused person and he did not challenge that fact and did not explain why he wrote the three cheques belonging to a fictitious account- holders, his guilt is established and he is not entitled to get benefit of doubt out of minor omissions made by the prosecution witnesses. Md. Ibrahim Hossain Vs. The State, 14BLD(AD)253 Section—114(g) Benefit of doubt Evidence being contradictory on the material question of recognition of the accused persons and there being no circumstantial evidence lending support to the deposition of P.W2, the sole eye-witness of the case, the accused are entitled to benefit of doubt. Nurul and others Vs. The State, 14BLD (HCD)221 Section—114(g) Benefit of doubt The only public witness to the occurrence is the baby taxi driver P.W. 2 Aslam who failed to recognise the accused persons and he could not say the name of the baby taxi driver or the number of the babi taxis from which the contraband phensidil syrup was recovered and he did not see from whose physical possession the said syrups was recovered. The baby taxi driver in question being neither a witness nor an accused in the case and no neighbouring shop-keeper having been examined as a witness in the case, the prosecution case becomes doubtful. Under such circumstances the accused are entitled to benefit of doubt. Md. Farque Hossain and 2 others Vs. The State, 15BLD(HCD)163 Ref: 1973 Cr1. L. J. (All) 1096—Cited Section—114(g) Benefit of Doubt In order to succeed the prosecution must prove its case beyond all reasonable doubts by cogent reliable and sufficient evidence. The accused is entitled to get all benefits of doubt till the persecution succeeds in proving its case convincingly. Simply because several other cases are pending against the accused persons, no adverse presumption can be drawn against them in determining their guilt. The State Vs. Md. Musa alias Musaiya alias Shafir Bap, 15BLD(HCD) 169 Ref: 5 BLD (HCD) 9; 46 DLR (HCD) 77; 27 DLR (AD) 29; IIDLR (SC) 84; 20 DLR 780; A.I.R. 1916 (All) 50; SC Cases 1982, 368 (1); 1IBLD(HCD) 295—Cited. Section—114(g) Benefit of Doubt In a case where bitter enmity between the parties is proved some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. In the absence of such corroboration of the evidence of interested witnesses, the accused becomes entitled to the benefit of doubt. When FIR mentions gun shot injuries on the head and waist of victim Waliullah but the postmortem report does not mention any such injuries on the body of the victim and the Investigating Officer did not find any alamat of firing, the prosecution case becomes doubtful. Serajul islam and others Vs. The State, 15BLD(HCD)613 Section—114(g) Benefit of doubt Witnesses to the case being totally disinterested and they having deposed uniformly on the material question of recovery of the revolver from the possession of the appellant, the case has been proved against him beyond the shadow of reasonable doubts. In such circumstances, the appellant is not entitled to the benefit of doubt. Mahbubnr Rahman Khan alias Tipu Vs. The State 16BLD(AD)268 Section—114(g) Benefit of doubt For securing conviction in a criminal case the prosecution must prove beyond all reasonable doubts the individual liability of each and every accused person. Since there were fourteen inmates living in the house of occurrence on the fateful night and the prosecution has failed to prove beyond doubts as to which of them actually committed the alleged murder of victim Chapa, it cannot be said that the guilt of the 3 appellants has been proved. Although the defence plea that some miscreant has committed the murder from out side the window falls through and it is found that victim Chapa was murdered by some of the inmates of the house, still then since individual liability of the appellants could not be ascertained, the accused are entitled to get benefit of doubt. Zahirul Alam Kamal and another Vs. The State, 16BLD(HCD)428 Ref: 39 DLR(AD)177—Cited Section—118 Child witness Under section 118 of the Evidence Act a prosecutrix, who is the victim of rape or of sexual offence, is undoubtedly a competent witness and she is entitled to receive the same weight as is attached to an injured person in case of physical violence. The same degree of care and caution must therefore attach to the evaluation of her evidence as in the case of an injured witness in a case of physical violence. Once the Court is satisfied that the evidence of the prosecutrix can be safely accepted and relied upon there is no need for any corroboration to her evidence. Jahangir Hossain Vs The State, 16BLD (HCD)238 Ref: (1960) 12 DLR (SC) 165; (1967) 19 DLR (SC) 259;13 BLD(AD)79; 1952 SCR 377; A.I.R. 1983(SC)753; A.I.R. 1980 (SC) 658; 47 DLR 54: 15 BLD 34—Cited Section—118 Evidence of a child witness Section 118 of the Evidence Act provides that all persons who can understand the questions put to them or can give rational answers to those questions are competent witnesses to testify in Court. It is not imperative for the Court to subject a child witness to a preliminary examination before reception of his evidence. The Court may satisfy itself during the progress of the evidence in Court that the witness is capable of understanding the questions put to him and of giving intelligible reply. In case of such satisfaction, the evidence becomes admissible. It is desairable that the Court (trial court) should make an endorsement about its satisfaction in the ordersheet, in the deposition sheet or in the body of the judgment. There is no legal compulsion that the Court must ask preliminary questions to test the capacity of a witness to testify. Siraj Miah Vs The State, 17BLD (HCD)295 Ref: 1952 SCA 40; 143 Indian Cases 479; 11 DLR (Dhaka) 338; 25 DLR 4—Cited Section—118 Child witness A child witness is a competent witness to give evidence in the Court provided it appears from its deposition that it could understand the questions put and give rational answers thereto. If the child, though of tender age, was found to be intelligent to understand the questions put to him and to give rational answers to those questions then his capacity to give evidence was on the same footing as that of any other adult. But in such a case it would be desirable for the Court before examining the child as a witness, to test his intellectual capacity by putting a few simple and ordinary questions to him and to record a brief proceeding so that the higher Court may feel satisfied as to the capacity of the child to give evidence. The State Vs Ali Hossain,18BLD (HCD) 655 Ref: AIR 1937 (Patna) 662; 1BLC (1996) 173; 43DLR(AD)(1991)234;A1R1953 (Patna) 246—Cited Section—134 It provides that no particular number of witnesses is necessary to prove any fact. The consensus of judicial opinion is that conviction can be based on the solitary evidence of a witness, if not tainted in any way. In the instant case, since the evidence of the only witness seeing the infliction of the fatal dagger blow on the neck of victim Abdun Nabi by condemned prisoner Munshi Miah suffers from infirmities and a number of persons present near about the place of the occurrence that took place in broad daylight do not support the informant in so far as it relates to the infliction of the fatal injury, it is highly unsafe to base conviction on the solitary evidence of the informant. Discrepancy in the medical evidence makes the prosecution case doubtful. The State Vs. Munshi Miah, 15BLD (HCD)139 Ref. 29 DLR (AD) 21i—Cited Section—134 Number of witnesses Though it provides that no particular number of witnesses is required for the proof of any fact but still then in order to convict an accused solely on the basis of the evidence of police personnels, who made the search and seizure, the Judge must ensure that their evidence is unimpeachable and unshaken in character and the other witnesses to the search and seizure, who are alleged to have resiled from their previous stand, are unworthy of credence. Talebur Rahman alias Taleb Vs. The State, 16BLD(HCD)86 Ref: 8BLD 106; 21 DLR 684; 44 DLR 159—Cited Section—134 Law does not require any particular number of witnesses to prove a case. Conviction may be well founded even on the testimony of a solitary witness provided his credibility is not shaken by any adverse circumstances appearing on the record against him and the Court, at the same time, is convinced that he is a truthful witness. As a general rule, a court can act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. Evidence on a point is to be judged not by the number of witnesses produced but its inherent truth. Al Amin Vs. The State, 19BLD (HCD) 307 Sections—137 and 139 Examination and cross-examination of witnesses—Appreciation of evidence The proper procedure for appreciation of evidence is to evaluate the evidence of a witness in its entirety and not to bank on a particular portion of it, evidence of a witness in his cross-examination is as good as that of his examination-in-chief, while considering the legal incidence and the essence of the impressions that it creates upon the mind of the Judge. In arriving at the proper conclusions, the Court is also required to take note of the attending circumstances of the case, which at times become a determining factor in judging the guilt or innocence of witness ignoring his cross-examination an vital circumstances surrounding the case, must be held to be no proper finding in the eye of law. Taizal Biswas Vs The State, 20BLD (HCD)322 Sections—154 and 142 Witness—Cross-examination by the party calling it It provides that the Court may, in its discretion, permit a party to put questions to its witness which are usually put in cross- examination by the adverse party. It may so happen that due to gaining over or unwillingness or faulty memory a witness does not support the case of the party who brings him in the witness box but gives unfavourable evidence, in that case the Court is given the discretion to relax the rule of ‘leading questions’ as defined in section 142 of the Evidence Act and allow the said party to put questions to its own witness as in done by the cross-examination by the adverse party. Md. Babul Vs. The State, 18BLD (HCD) 386 Ref: A.I.R. 1931 Cal 401—Cited Section—155 Impeaching credit of witnesses—When the prosecution made out a case in the Court totally different from the F.I.R. case and the statements of the witnesses recorded under section 161 Cr.P.C. and the witnesses are found to be suppressing material evidence, the prosecution case becomes unworthy of credence. Md. Zakir Hossain alias Jakir Hossain and others Vs. The State, 14BLD(HCD)509 Circumstantial evidence To base a conviction upon circumstantial evidence it must be incompatible with the innocence of the accused and it must exclude all reasonable hypothesis of his innocence. Haji Md. Jamaluddin and others Vs. The State, 14BLD(HCD)33 Corroboration Corroborative evidence is not an imperative component of Judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of a victim of sex crime is not a requirement of law but merely a guidance of prudence under given circumstances. The rule is not that corroboration is essential before there can be a conviction. The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessite looking for corroboration of her statement, the Court should find no difficulty in acting on the testimony of a victim of sex crime alone to convict an accused where her testimony inspires confidence and is found to be reliable. Al Amin Vs. The State, 19BLD(HCD)307 Credibility of a witness The credit to be given to the evidence of a witness is a matter which is not governed by rule of law. It depends upon his knowledge of facts to which he testified, his disinterestedness, integrity and veracity. In judging the credibility of a witness the Court has to consider the surrounding circumstances as well as the broad probabilities. When a witness is found to be trustworthy, straight forward and reliable and his evidence intrinsically rings true, the evidence of such a witness can be safely relied upon. Daliin and another Vs. The State,15BLD(HCD)133 Corrobaration of the statement of the prosecutrix It has long been a rule of practice for insisting coroboration of the statement of the prosecutrix but if the Judge feels that without corroboration in a particular case conviction can be sustained without independent corroboration, then the Judge should give some indication in his judgment that he has/had this rule of caution in his mind and then should proceed to give reasons for considering it necessary to require corroboration and for considering that it was safe to convict the accused in a particular case without corroboration. Md. Saidur Rahman Neoton Vs. The State 13BLD(AD)79 Ref: 12 DLR(SC)165; 19 DLR(SC)256; 1952 Supreme Court Reports 377—Cited Death of a witness after examination-chief and before cross-examination When a witness died after he had been examined-in-chief and before his cross examination had been concluded, his evidence was admissible, but the degree of weight to be attached will depend on the circumstances of the case. There is no provision in the Evidence Act that the evidence of witness which is admissible at the time he gave it should become inadmissible for the simple reason that he could not be cross-examined for some unavoidable reason. Chowdhury Mia Vs. Dhanindra Kumar Skil (1993)13BLD(HCD)216 Ref: Davies Vs. Otty(1865)55 E.R.875; W. Strewart Vs. New Zealand Insurance Co. Ltd.(1912)16C.W.N.991=17 IC. 188; Narsing Das Vs. Gokul Prasad, A.I.R.1928 All 140 =50 All.113; Ahmed Ali Vs. Joly Prosad, 1944 All. 188—Cited Expunction of Evidence Once a witness has deposed in the Court, his deposition has to remain on record for whatever it is and there is no law for expunction of his evidence at the instance of the prosecution. Md. Mainuddin Howlader Vs. The State, 14BLD(HCD)82 Evidence of prosecutrix in a rape case On principle the evidence of a victim of sexual assault stands at par with the evidence of an injured witness. Just as a witness who has sustained an injury in the occurrence is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of rape or of a sexual offence is entitled to a great weight, absence of corroboration notwithstanding. If the evidence of the victim of a sexual offence does not suffer from any basic infirmity and “probabilities factor” does not render it unworthy of credence there is no reason to insist on corroboration to the evidence of the prosecutrix. Law does not require that the evidence of the prosecutrix requires corroboration. In a sex offence case there is no legal bar in believing the sole testimony of the prosecutrix, nay, she must prima facie be believed, except in a rarest of rare cases where she is found unreliable. The necessity of corroborative evidence will arise and that the legal custom of insisting on corroboration in every case or alternatively of stating the reason for waiving such corroboration is not applicable in our country. Jahangir Hossain Vs The State, 16BLD (HCD)238 Evidence—False in part, may not be false in entirity In our country there is a tendency in the witness to exaggerate, embroider and also to falsely implicate some persons in addition to the real offenders. But even then the Court is to scan the evidence carefully so as to come to a correct decision as to which part of the evidence is acceptable and which part is to be rejected. Only when it becomes impossible to separate the truth from the falsehood, the Court will be justified in rejecting the entire evidence. Masum and others Vs. The State, 16BLD (HCD)151 Non-examination of the Investigating Officer When non-examination of the Investigating Officer deprives the defence of its valuable right to shake the credit of the prosecution witnesses by bringing out the contradictions between their statements made during the investigation and the statements made before the Court, in such a case non- examination of the I.O. is fatal. Zafar and others vs. The State, 14BLD (HCD)280 Police personnel —Interested witness The public witness did not support the prosecution case and the prosecution failed to come with reasonable explanation as to why they did not support the prosecution case nor any enmity with the informant of this case. So, the persistent evidence of the public witnesses regarding denial of their presence at the time of alleged recovery in no way can be cured by the official witnesses (police personnel) who are none but interested in this case. Aslam Jahangir Vs The State, 20 BLD (HCD) 426. EVIDENCE ACT, 1872 Evidence Act, 1872 (I of 1872) Section —3 Proceeding before Arbitrator Arbitration Award cannot be quashed simply on the ground of Misreading of evidence. Arbitrators in awarding Award had taken upon themselves the duties of Arbitrators carefully and considered papers in the case and passed the Award. It, thus, cannot be at all suggested that the Award rested on no evidence or on Misreading of evidence. Chittagong Steel Mills Ltd & Anr. Vs M/S MEC & Ors. 13 BLT (HCD)230 Section-6 Unregistered deed of gift—the plaintiffs case was that the suit property was originally belonged to Abdul Wahab Howlader. The said Abdul Wahab Howlader executed a deed of gift in favour of the plaintiffs on 27.7.64 and delivered the possession but the said deed could not be registered due to certain difficulties. The defendants claimed the title over the suit land as a residuary sharer. Hence the plaintiff filed the title suit for declaration of title in respect of suit land—the learned trial court in consideration of oral and documentary evidence and materials on record decreed the suit. Against the said decree the defendants preferred appeal. Learned Appellate Court allowed the appeal by reversing the decree of the trial court—Held: That the plaintiffs, being in exclusive possession over the statutory period of limitation from the date of institution of the suit by the plaintiffs in the year 1984 and to the complete ouster of the defendants for about 20 years from the suit property have acquired a valid title even on the basis of the defective deed -of gift being an unregistered one. It further appears that the defendant could neither challenge the said unregistered deed Ext. I nor file any suit to establish their alleged right in the suit property within the statutory period of 12 year and it is further held that the defect of the plaintiffs deed of gift has been cured with the passage of time and the plaintiffs imperfect title has been perfected by the said period. Amirunnessa & Ors Vs. Abdul Mannan Howlader & Ors. 3BLT (HCD)-245 Section -6 Document—Plaintiff instituted the suit for declaration of title and also for a declaration that the suit property cannot be treated as vested and non-resident property (Enemy Property) alleging, inter alia that one Jagat Chandra Karmaker was the C. S. recorded owner of the suit property. After his death his son Gopal Karmaker inherited the said property. This Gopal Karmaker transferred the suit property to one Harendra Lal Saha and Jagannath Saha. After the death of Harendra Lal Saha his property was inherited by his two sons Chandi Gopal Saha and Ashutosh Saha. One Parveen Akter purchased the suit property by registered deeds from Chandi Gopal Saha, Ashutosh Saha and Jagannath Saha. From this Parveen Akhter plaintiff- appellants had purchased the suit property while the plaintiffs were possessing the suit land, they came to know that the property in question was declared as vested and nonresident property—learned Subordinate Judge dismissing the suit holding that the plaintiffs failed to produce any document to show the transfer in between Gopal Karmaker and Harendra Lal Saha and others—Held: The averments made in the plaint and the evidence of P.W.I together with the written statements of defendant No. 2 and the evidence of P.W. I it clearly appears that Harendra Lal Saha and others became the owners of the suit property and they possessed the same and sold the same to Mrs. Parveen Akhter by registered sale deeds in 1981—the rent receipts together with the continuous record as right vide exhibits I series may be treated as collateral evidence of title in favour of the plaintiff. Now, if we consider the oral as well as documentary evidence as stated above, we find that this Harendra Lal Saha and others acquired right and title over the suit property. The documents by which the heirs Harendra Lal and Jagannath transferred the suit land to Parveen Akhter and the registered document by which Parveen Akhter transferred the land to the present plaintiffs are not disputed at all. So it is held that the learned Subordinate Judge failed to consider the material evidence or record as stated above and he has arrived at a wrong finding and as such it cannot be sustained. Md. Amjad Hossain & Ors. Vs. Upazilla Nirbahi Officer Savar & Ors. 3BLT (HCD)-163 Section-33 The market value of the vessel of the plaintiff was determined by the Admiralty Judge on the basis of Ext. 25 series which is the deposition of seven witnesses (employees of the plaintiffs’ vessel) who appeared before the Magistrate, 1st. Class, Marine Court, Dhaka. It is really unfortunate that deposition of those persons who deposed in a criminal proceeding before the Marine Court s relied upon by the Admiralty Judge. Under section 33 of the Evidence Act that proceeding was not between the same parties. As a matter of fact, Ext. 25 series is not admissible in this admiralty proceeding and Ext. 25 series cannot be legally accepted as the basis for determining the market value of the vessel and consequently the passing of the decree of Tk. 80,10,000/- is without any legal evidence and the same cannot be awarded in favour of the plaintiff as has been done by the learned Admiralty Judge. BIWTC Vs. Al-Falah Shipping Lines Ltd. & Ors. 6BLT(AD)-103 Section-34 read with Bankers Books Evidence Act, 1891; Section-4 Section 4 exempts a banker from producing bankers’ books namely ledgers day books, cash-books, account-books and any other books used in the ordinary business of a bank to prove its claims. Instead, it’ a bank shall produce a certified copy of any entry or entries in the books of the bank in a manner as provided by section 2(8) of said Bankers’ Books Evidence Act. Even when such certificate is produced and proved to have been so written that will not if so facto prove the claim of a bank. Such entries would have to be corroborated by independent evidence. BCCI Ltd. Vs. Bangladesh Electrical Industries Ltd. & Ors. 12 BLT(HCD)-502 Section-73 Handwriting expert opinion as to the identity of the disputed signatures and initials on a questioned document—Contention than the opinion of the handwriting expert is preferable to the court’s exercising the power under section 73 of Evidence Act which is to done very cautiously and the said course is hazardous and inconclusive was rejected— petition dismissed. It is true that long line of decisions have expressed divergent views and one view is that the Court should not take such hazardous steps for expressing any opinion and another view to the contrary. In the context of two views, a Judge naturally hesitates to exercise the power conferred by section 73 to compare handwriting by using his own eyes. This is more so whenever evidence is scanty unreliable or there is no evidence of hand-writing expert but these are mere words of caution. There is no hard and fast rule which prohibits such course by the Judge. The privy Council itself compared the disputed signatures with admittedly genuine signature in Monindra Vs. Tshalaxmi Bank, A. I. R. 1945 P.C. 150 and the same was followed in A.I.R. 1949 PC 325. Mr. Gafur strenuously urged that this court should lay down the law. This contention does not appeal to us in view of the fact that the proceeding is still pending in the Court below and sufficient guidance has been given by the long line of decisions for the Court which do not warrant any further pronouncement. Nitai Chand Shah. & Ors. Vs. Md. Aga. Khan & Ors. 1BLT (AD)-46 Section-73 In the instant case the court by the impugned order allowed comparison of the disputed signature of the plaintiff on the solenama with the specimen signatures of the plaintiff and the signature of the plaintiff on the registered sale deed dated 23.10.1983. The plaintiff petitioner raised serious objection on the ground that the genuineness of the registered sale deed dated 23.10.1983 was challenged in Title Suit No. 334 of 1992 Held: Comparison of disputed nature L.T.I cannot be done by the Expert with the said registered document which is not admitted or proved to the satisfaction of the court. Dinesh Chandra Deb Vs. Dulal Chandra Karmaker & Ors 9BLT (HCD)-202 Section-73 Opposite party Mossammat Zinnatunnessa categorically denied that she put her thumb impression on each and every page of the alleged deed of gift—Held: I am of the view that in the facts and circumstances of the case it is better to have an expert opinion as to the execution of thumb impression of the opposite party on the alleged deed of gift. It is true that the expert opinion is not binding upon the court to decide as to the genuineness of thumb impression so I am of the view that the opposite party will not be prejudiced in any way if the prayer for expert opinion is allowed. Rather, expert opinion enables the court to come to a satisfactory conclusion. Md. Abdul Hashem Mizi Vs. Most. Zinnatunnessa & Org. 8BLT (HCD)-110 Section-73 It is well settled that Section 73 of the Evidence Act permits the Court to make a comparison of signature or writings and so adoption of such a method cannot be termed as hazardous or dangerous. Zohra Khatoon & Ors. Vs. Ekramul Haque Chowdhury & Ors. 10BLT (AD)-171 Section-73 The Point at issue to be decided was as to whether the deed of Hebabil-ewaz was genuine or not and therefore trial court directed the signature/thumb impression appearing in the deed in question to be compared with that of the admitted thumb impression appearing in another. There is no illegality in that order. Md. Sadequl Islam Sarder Vs. Saimuddin Sarder & Ors. 12 BLT (AD)-73 Section-73 It strikes necked eyes that 17 endorsements were written on 3/4 seating. Name of defendant no.1 on so called acknowledgements as written on 01.01.1987; 31.01.1987; 18.02.1987 and 23.02.1987 appear to be of the same pen and ink; those on 13.06.1987 and 19.07.1988 appear to be of another pen and ink, those of 03.05.1986, 28.05.1986 and 16.07.1986 of different pen and ink and those of 13.07.1986; 19.07.1986 and 23.04.1987 were still of another pen and ink. We have examined the signatures on the acknowledgements with the admitted signature of defendant no.1 on the agreement, exhibit-2 and we do not have any hesitation to say the signatures on the acknowledgements do not tally with the admitted signature of defendant no. 1. Saroj Kanta Sarker & Ors. Vs. Seraj-ud-Dowla & Ors 12 BLT (HCD)-28 Section-73 In case of contentious writing, signature etc. though provision of section 73 of Evidence Act permits the court to compare the contentious signature with the admitted signature, the safe and best course in our view for the court would be to avoid the practice of comparing the writing or signature etc. and should not stake its judgment on the opinion formed or view taken upon resorting to risky or in other words ‘unsatisfactory and dangerous’ procedure. Tarak Chandra Majhi Vs. Atahar Ali Howlader & Ors 13 BLT (AD)03 Section-73 Trial court resorted to the mode as provides in section 73 of the Evidence Act and thereupon comparing signature in the pass port (Ext.14) and in the Power of Attorney (Ext. 1 ‘ka’) with the signature appearing in the deeds of October 27, 1969 held the document of October 27, 1969 forged. The mode so resorted to by the trial Court was erroneous since identity of the plaintiff Jatindra Mohon Roy whose signature claimed to be in Ext. 14, and Ext. 1 (ka), was not established in the background of the contention of the defendants that the said plaintiff is a fictitious Jatindra Mohon Roy and not the real Jatindra Mohon Roy who transferred the property in suit by the deeds dated October 27, 1969 to Ali Ahmed Khandker and Wali Mohammad Siddiqui. The High Court Division concurred with the finding and decision of the trial Court as regard the deeds dated October 27, 1969. Since the finding of the trial Court that by the deeds of October 27, 1969 plaintiff Jatindra Mohon Roy did not transfer the land in suit was arrived at on the basis of inadmissible evidence and upon resorting to a made whereof there was no basis, as such the said finding of the trial Court and the High Court Division was not legally sustainable. A N M W Nabi & Anr Vs. Md.Balai Roy & Ors. 15 BLT (AD) 27 Section —73 It is true that the Court itself can compare any signature or L.T.I. of any concerned person himself under section 73 of The Evidence Act and come to a decision but it is better to have an expert’s opinion also, particularly in a case of L.T.I. Md. Chand Miah & Ors Vs. Md. Ibrahim & Ors. 15 BLT (HCD)306 Section-73 The Superior Courts warned and cautioned the Court not to be venture to compare the disputed signature with admitted signature as an expert and give its opinion where the dispute in the subject matter in the subject matter is based upon the genuineness of the writing or signature in a deed. The Superior Courts held that the task held that the task of examination of hand writings being a very technical one which should be left with the expert opinion evidence, who by applying scientific method comes to the opinion whether the signature or writings is that of the person by whom it purports to have been written, which cannot be done by comparison with naked eyes by the Court. Namita Rani Biswas & Ors Vs. Rabindra Nath Majhi & Ors 15 BLT (HCD)493 Section 74 Plaint is a Public document. Swarupa Banu & Ors Vs. Ankura Begum & Ors 15BLT(HCD)118 Section—74 Whether a passport could be accepted as a conclusive evidence. The plaintiff to prove his date of birth being 2.1.1946 has produced his passport Ext. 3 issued under the signature of the Deputy Assistant Director, Immigration and passports. Government of Bangladesh, Dhaka on 16.2.1997 and the date of birth as mentioned in the passport is 2.1.1946. This passport being public document could be accepted as a conclusive evidence to prove the date of birth of the plaintiff in the absence any other reliable, documentary evidence. Md. Ruhul Amin Vs. Latif Bawani Jute Mills Ltd. & Ors. 14 BLT (HCD)361 Sections-74 and 76 read with Transfer of Property Act, 1882 Section- 123 It is the case of the respondent that the deed of gift has been registered. The production of the original deed of gift by the donee and other documents such as mutation paper, municipal record would have indicated that the same has been acted upon. But neither the original deed of gift nor the original lease deed of Dr. Ansari nor any mutation paper nor any municipal record have been procured to prove the claim of the respondent in view of the aforesaid we hold that the High Court Division Misdirected itself in holding that when there was registered deed of gift the respondent has a genuine and strong claim over the property. Bangladesh & Anr. Vs. Mrs. Shirely Anny Ansar 9BLT (AD)-185 Section-79 and 114 Whether the deed, exhibit-I. Ekrarnama can he held to he not proved for non- examination of the scribe and the other attesting witness. The exhibit I, Ekrarnama is a registered deed. So, there arises under Sections-59 and 60 and 114 (illustration e) of the Evidence Act a presumption that it was duly presented and registered by defendant 3. Such presumption is. however, rebuttable. But no evidence in rebuttal of such presumption was adduced by the defendant 1 and 2 ,Even, they did not take any step to examine defendant 3 who could have come to the court and denied to have executed the Ekrarnama. The Ekrarnama would then have a decent burial. A licensed deed writer PW-2 on oath testified that the deed was written before him be the scribe, Amir Bux and executed by the defendant 3. The plaintiff also deposed in the same line on the writing of the deed and its execution Sections-67 and 68 of the Evidence Act provide for proof of signature, handwriting and execution of a deed. Ekrarnama is not required to be attested under the law. Even, then it was attested by two witnesses. Any attesting witness can prove the writing and execution of the deed. The appellate court did neither discard nor disbelieve the evidence of PW-2 Abu Backkar Siddique. I also do not find any reason to disbelieve the evidence on the writing and execution of the Ekrarnama. In view of the law and the evidence as stated above, why the execution of Ekrarnama, exhibit I should not be held to have been proved is not understood. So without discarding and or disbelieving the evidence of PW- 1 and 2 and considering the relevant laws, the appellate court erred in law to hold that the plaintiff failed to prove the Ekrarnama. Mrs. Wahida Begum & Ors. Vs. Tajul Islam & Ors. 8BLT (HCD)-238 Section —85 Regarding authorization —Held: In her testimony, she has also stated that she got written authorization. In cross-examination, she has deposed that her husband lives in Abu Dhabi since before her marriage for last 15 years. No such authorization was exhibited in the case. Mr. Salauddin however drew our attention to a power of attorney kept in the file and an envelope. We have seen them. It appears to be a power of attorney and type written in Bengali by the typist Dipen Chandra Pal, Judges Court, Noakhali. It does not bear any date. The envelope is also torn and open. The record does not show who opened it. The envelope bears the seal of Sonaimuri dated 11.10,98. Those were filed in court with a list dated 26.10.98. More important is that the document is not executed before, and authenticated by a notary public nor any representative of our foreign Mission in Abu Dhabi. In view of S.85 of the Evidence Act, such a document is not admissible in evidence. Md. Shah Alam Vs. Abul Kalam & Ors. 10 BLT (HCD) 22 Section – 86 From Ext.3 it transpires that the contract on the basis of which the suit was filed in the Munsif Court, Krishananagar was written by one Nagendra Nath Ghose and the attesting witnesses to the contract belonged to the members of Nagendra Nath Ghose’s community and all of them were citizens of India. But the plaintiff in his evidence in the present suit stated that one Azimuddin Biswas was scribe of the agreement for exchange and Moksed and Moizuddin were attesting witnesses. Thus it appears that the plaintiff instituted the present suit on the basis of a different contract which he could not prove by adducing either documentary or oral evidence and the contract on the basis of which Shibnath Ghose and others filed Title Suit No.17 of 1961 in the Court of Munsif, Krishananagar, as it appears, was on the basis of a different agreement. Md. Abdul Mannan & Ors. Vs. Abdus Samad Mondal & Ors. 14 BLT (AD)198 Section-90 Once such a document more than 30 years old is produced from proper custody Section 90 of the Evidence Act entitles the Court to presume that it is a genuine document. A.D.C. (Revenue) Vs. Md. Reazuddin PK & Ors 8BLT (AD)-185 Section-90 Exhibit I being supported by exhibit 6 being an age old document of over 30 years. It had presumptive value under Section 90 of the Evidence Act and the Exhibit 1(ka), the certified copy of the original sale deed being admitted in evidence without objection in the trial court and as such no objection can be raised at his stage challenging the legality and propriety of the said certified copy of the sale deed. At the same time in the written statement the defendants have taken burden of proof that the certified copy of the sale deed. Exhibit 1(ka) as forged and fraudulent but the defendants failed to prove the same and as such the certified copy of an old document of over 30 years old having presumptive value under Section 90 of the Evidence Act admissible in evidence. Exhibit 1 (Ka) cannot be thrown out of consideration and rent receipts being filed by the plaintiffs are the collateral evidence of their possession being followed by title. Md. Sadek Uddin Chowdhury & Ors. Vs. Md. Anowarul Haque Chowdhury & Anr. 11BLT (HCD)-72 Section-90 That the legal presumption of 30 years old document by virtue of provision of section 90 of the Evidence Act is rebuttable. The mere fact that a document is 30 years old does not make it immune from attack by the other side on the question of its genuineness. Md. Biseruddin Sardar & Ors Vs. Md. Tofazzal Hossain Biswas & Ors. 15 BLT(AD)47 Sections-91 & 92 Section-91 of the Evidence Act is about the manner of proof of a document which has been reduced to the form of a document and which is required by law to be reduced to the form of a document. The document itself has to be proved, or where secondary evidence is admissible, secondary evidence of its contents may be proved. The terms of the document cannot be proved by any other mode of proof. The impugned kabala has been proved under Section-91. Section-92 of the Evidence Act provides that when a document described in Section- 91 has been proved according to Section-91, “no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from, its terms.” Tambia Khatun Vs. Rafiqullah 8BLT(AD) -230 Section-101 Onus of proof—both sides have adduced their evidence in support of their respective cases and when the date is fixed for argument the defendant petitioner filed two applications before the Family Court, one for examining the plaintiff opposite party No.1 by a Gynecologist to see whether she is still virgin in the instant case the plaintiff opposite party No. I is to prove her case and will get its own course and for matter she cannot be examined by a competent doctor to as certain as to whether she is virgin or not because thereby the onus of proving the defense will be illegally shifted on the plaintiff opposite party No.1. Learned Family Court rightly rejected the application of the defendant petitioner. Md. Abdul Mannan Sikder Vs. Mst. Nurun Naher Begum 4BLT (HCD)-148 Section-101 Burden of proof—vested property—when challenged in a Court of law, the onus is heavily on the Government to prove affirmatively that the property in question is in fact a vested property, failing which some evidence to the contrary adduced by the successors-in-interest of the original tenant or the transferees showing that they are in rightful possession of the disputed properties, is sufficient to take the same out of the ambit of enemy property laws. Mere claim by the Government or by the vested property authority that a certain property is a vested property, without the necessary factual basis and legal foundation, has no validity in the eye of law. Mann, Mondal & Ors. Vs. A. D. C. (Rev). 6BLT (HCD)-22 Section-101 Whether the cashier is a necessary party The plaintiff respondent filed money suit against Bank, the sole defendant appellant for realisation of deposited money by him self— the cashier is not a necessary party in the suit in the facts and circumstances of the case. Pubali Bank Vs. Md. Selim 7BLT (HCD)-21 Proof of a document Unless objection as to admissibility of a document was taken at the earlier opportunity, that is, at the time of admitting the documents into evidence and marking it as an exhibit, the question of its admissibility cannot be raised at a subsequent stage. Pubali Bank Vs. Md. Selim 7BLT (HCD)-21 Section- 101 Onus of proof— in the instant case the transferee is a Pir and the transfer is his disciple who is not an well educated woman. In order to make the transfer in this case valid an legal transaction burden of proof that it is so for the reason of the spiritual relationship that grew between the transferor and the transferee in whom the transferor had deed faith lies on the transferee defendant No.1 (Pir). Shah Sufi Taj Islam Vs. Begum Rokeya Chowdhury & Anr. 9BLT (AD)-62 Section-101 Onus of Proof—Held: Learned Judge of the High Court Division found fault with the plaintiff for his failure to adduce evidence to show that he either purchased the machineries and spare parts from the market or fabricated the same in his factory. When defendant Nos. 1-5 acknowledged the receipt of the same there was no necessity of adducing evidence to show from whom those were purchased or from where those were fabricated. That was not an issue in the suit, Learned Admiralty Judge Misdirectioned himself to enter into such an enquiry unnecessarily When the supply of the machineries and spare parts are admitted by the principal defendants against whom decree has been sought there was no necessity of enquiring about the origin of the same. We are of the view that failures of the plaintiff adduce evidence as to from whom those were purchased or from where those were fabricated cannot deprive the plaintiff from recovering the price of the same form the defendant Nos. 1-5. Md. Giasuddin Vs. M. V. Forum Power & Ors 8BLT (AD)-272 Section-101 Provision of P.O. 149 of 1972— citizenship—suit for declaration that the plaintiff appellant is a citizen of Bangladesh —the trial court dismissed the suit under conception that the onus was upon the plaintiff according to the provision of P.O. 149 of 1975 to prove that he was a permanent resident of this country in order to entitle him to get a declaration that he was a citizen of Bangladesh and it further held that the plaintiff should have proved that on 25.03.1972 he was in this country left and the trial courts observed that the plaintiff left this country before the liberation war and came back after liberation—Held: The right of citizenship acquired by birth cannot be lost or destroyed unless it is proved that he has given up it and acquired the citizenship of any other country. Which is very much lacking in this care and the defendant No. 4 Now respondent could not prove that the appellant lost his citizenship of Bangladesh which he had acquired by birth. So the Courts below, illegally shifted onus to prove upon the plaintiff appellant as to his Bangladeshi citizenship which he held and acquired by birth. Annada Prasad Das Vs. Dy. Commissioner& Ors 9BLT (HCD)-456 Section-101 Onus-All the donors are illiterate ‘Pardanashin’ old Muslim village women. A special rule of onus was devised in the sub-continent to protect certain category of women who suffer from some disabilities and disadvantages because of ‘pardah system. It applies to all pardahnashin’ women, literate or illiterate. Then, the protection was extended to ignorant and illiterate women though not strictly ‘pardahnashin’. Secondly, in a case when transfer by a pardahnashin’ woman is denied by such women, the onus is always on the party who wants to hold such women to the terms of the deed to satisfy the Court by evidence that she substantially understood the disposition and she executed the deed with full understanding of what she was doing and of the nature and effect of the transaction. Thirdly, when the transferee or donee stands in a position of active confidence or had fiduciary relationship with the pardahnashin’ woman he carnies additional burden to prove that such woman had independent and disinterested advice from persons other than the recipient of the document in executing a deed; Anowarul Azim & Ors. Vs Fatema Khatun & Ors. 12 BLT (HCD)255 Section-101 The plaintiffs could not prove their settlement and also could not show that the Bhawal Court of Wards Estate had authority to settle the suit land in the face of the notifications Ext. A-A(2). The courts below also did not take into consideration the broad fact that the salami receipts produced by the plaintiffs are private documents and these require strict proof for being admitted in evidence. Govt. of Bangladesh Vs. Abdur Rahman & Ors. 13 BLT(AD)173 Section- 101 Burden of Proof When PW-l Kutubuddin claims that they entered into the shops with knowledge of the owner. The owner did not take any steps for eviction during their business. The owners had no knowledge since when they possessed.. Such statements clearly prove that initial entry of the plaintiffs and possession since then was permissive and the burden was therefore heavy on the plaintiffs to establish that such possession became adverse. Hazi Ashraful Alam Vs Md. Moniruddin & Ors 13 BLT (HCD) 86 Section —101 Agreement is unregistered – burden of proof Agreement was scribed by Abul Bashar and attested by witnesses Shamsul Huq Munshi and Ripon Sheikh. In proof of Agreement neither the scribe nor the attesting witnesses had been examined from side of Vendor- petitioner. Vendor-petitioner signally failed to discharge the burden of proof which was upon him in respect of legal existence of Agreement. Selim Saial Vs A. Majid Molla & Ors. 14 BLT (HCD)62 Section-101 Onus —A wife being found killed in the house of her husband onus heavily lies upon the shoulder of her husband to explain the circumstances leading to the death of his wife. Abu Sayed (Saked) Vs. The State 15BLT(AD)302 Section 101 Burden of Proof When a person asserts that particular transaction is a benami the onus in upon his to prove that the transaction is a benami one. Bangladesh Vs. Shamshur Rahman & Ors 15 BLT (HCD)23 Section-101 The burden of proof is envisages in section 101 of the Evidence Act is that the burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. This rule of convenience has been adopted in practice, not because it is impossible to prove a negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable Moreover, it is but reasonable and just that the suitor who relies upon the existence of a fact, should be called upon to prove his own case. The party on whom the onus of proof lies must in order to success establish a prima fade case. He cannot on failure to do so, take advantage of the weakness of his adversary’s case. He must succeed by the strength of his own right and the clearness of his own proof. Mohammad Ali Miah & Ors Vs. Md. Sekander Ali Haowlader 15 BLT (HCD)484 Section-101 read with Transfer of Property Act Section-54 Sections-102, 103 & 104 Suit for cancellation of Heba-bil-ewaz— The onus was upon the defendants according to prove the gift has been made intentionally, voluntarily and the consideration has passed. Md. Nurul Islam & Ors. Vs. Azimon Bewa 6BLT (HCD)-116 Section-102 Burden of proof is that obligation to adduce evidence to the satisfaction of the court in order to establish the existence or nonexistence of a fact contended by a party. The provision as to the burden of proof is founded on the Rule ‘ei incumbit probatio, qui dicit non qui negat”-’the burden of proving a fact rests on the party who substantially assents of the affirmative issue and not upon the party who denies it; for a negative is usually incapable of proof. This Rule is derived from the Roman Law and is supportable not only on the ground of fairness but also upon that of the greater practical difficulty which is involved in proving a negative than in proving an affirmative. This Rule is an ancient Rule founded on consideration of good sense and should not be departed from without strong reasons. Mohammad Azim & Ors Vs. Doly Islam & Ors 7BLT (HCD)-164 Section- 103 Onus Presumption of genuineness of Ext. 4, the pattani register, called for by the plaintiff The plaintiff claimed that she took settlement of suit land by means a ‘Dhol fordi’ and Dakhila granted by the Midnapur Zamindari Company Ltd.—The appellate court summarised its findings by way of stating that PW1 and PW2 were not competent witnesses while the witnesses of the alleged settlement Kalipada Ghose and Korban Ali were not cited as witnesses. There was no evidence that the tahsilder who allegedly gave the settlement had any authority to do so. The Dakhilas produced by the plaintiff were also not properly proved and the trial court wrongly exhibited the ‘fordi’ and Dakhilas as the basis of settlement as there was no proper proof of them — We may add that there is nothing on record to relate Ext.4 to the settlement claimed by the. plaintiff. Again, the hukumnama and other documents of settlement in favour of the plaintiff were for the plaintiff to produce. In the absence of proof of existence of the said documents the defendants could not be supposed to be in a position to produce them. Thus the High Court Division had obviously given a wrong onus and drawn an incorrect presumption of genuineness of Ext.4. Bangladesh & Anr. Vs. Abdul Latif Khan & Ors. 7BLT(AD)-208 Section-103 Onus—deed of sale dated 20.03.1973 in question does not contain any recital which would raise any doubt as to the transaction that it is not an out and out sale. It is the opposite parties No. 1 and 2 who raised the issue and asked the court to read the deed as a transaction of mortgage. They also claimed that opposite party No. I on the same date executed in ‘Ekrarnama Ext. A agreeing to reconvey the case land, Only on 28.02.1983, just four months before disposal of the case, opposite party No. 1 executed and registered a deed of sale in favour of the said land. Onus is therefore on opposite parties No. I and 2 to prove that ‘Ekrarnama Ext.A is genuine and executed on 20.03.1973 and that the sale deed is not a colourable transaction. Jahangir Alam Vs. Sri Sailish Chandra & Ors. 9BLT (HCD)-78 Section-103 Burden of Proof -—Shahabuddin Ahmed through whom the defendant got his initial knowledge of the ex. parte decree was not examined. The defendant did not examine any witness to prove is definite date of knowledge of the ex parte decree. As we find that summons and registered notices were validly and legally served upon the defendants it was the duty of the defendants to prove his initial date of knowledge Of the ex parte decree. Mrs. Shamsun Nahar Begum Vs. Salauddin Ahmed & Ors 8BLT (AD)-182 Section- 110 The presumption under section 110 in this case would apply only if two conditions are satisfied viz that the possession of the person claiming long possession in not prima facie wrongful and secondly the title of the person in this case the plaintiff despondent, against whom the long possession is claimed is not proved. The courts below found that the defendant appellants are in possession but they are not in possession to the knowledge of the real owner upon denying his title or any kabuliyat or deed of settlement. On the other hand the plaintiff respondent has proved their title by registered kabala executed on 13.11.1974 for valuable consideration. The hits at the root of the claim by the defendant appellants on the suit land on the basis of long possession since the courts below have disbelieved their claim of title of the suit property, No doubt the defendant appellants possession for a long time and by succession remains. But the claim of long possession remains precarious because of the finding of title of the suit land in favour of the plaintiff respondent by courts below. Sree Mali Gouri Das & Ors, Vs. A. B. Hasan Kabir & Ors. 11BLT (AD)87 Section-114 (g) In this case nowhere in the plaint it has stated that any of the attesting witnesses was present at the time of finalisation of talk for entering into the alleged agreement by the parties. The attesting witnesses appeared at the scene at a subsequent stage only at the time of execution of the alleged bainapatra, which is just a follow-up of the earlier proceedings. So, the earlier part of the proceedings remains totally unexplained for reasons best known to the plaintiff. The conspicuous absence of the plaintiff from the scene without any justifiable reason appears to be a mystery that has not been dissolved any cogent explanation and on that count the learned Court of appeal below was perfectly justified in drawing an averse presumption under section 1 l4(g) of the Evidence Act. Abdur Rahim Vs. Arifur Rahman & Ors 6BLT (HCD)-51 Section-114(g) Suit for redemption of mortgage — before the trial court from the side of the plaintiff 2 witnesses have been examined. P.W. 1 is the plaintiff himself and P.W. 2 is one Chand Mia who is an attesting witness of the questioned document. The scribe has not been examined and no explanation had been given from the side of the plaintiff for his non-examination. The scribe ought to have been examined to prove that when the document was written and executed the last portion indicating the mortgage was there in the kabala and that has not been subsequently inserted as alleged by the defence. This non-examination of the scribe led to an adverse presumption against the plaintiff of the fact had he been examined he would not have supported the plaintiffs version of the case of mortgage. Asmat Ali Vs. Abdur Rafique Mridha & Ors. 9 BLT (AD)-12 Section- 114(g) Before the trial court from the side of the plaintiff 2 witnesses have been examined. P.W. I is the Plaintiff himself and P.W. 2 is one Chand Mia who is an attesting witness of the questioned document. The scribe has not been examined and no explanation has been given from the side of the plaintiff for his non- examined to prove that when the document was written and executed the last portion indicating the mortgage was there in the kabala and that has not been subsequently inserted as alleged by the defence. This non- examination of the scribe led to an adverse presumption against the plaintiff to the fact that had he been examination. The scribe ought to have been examined to prove that when the document was written and executed the last portion indicating the mortgage was there in the kabala and that has not been subsequently inserted as alleged by the defence. This non-examination against the plaintiff to the fact that had he been examined he would not have supported the plaintiff version of the case of mortgage. Asmat Ali Vs. Abdur Rafique Mridha & Ors. 9BLT (AD)-77 Section-114(g) We upon considering the materials on record and considering that none of tile witness including the husband Tuli and Moina was examined and due to their non-examination presumption would be that had they been examine they would not have supported the prosecution stow raises a serious doubt as to the truth of the prosecution case. Khan Yeakub Ali Vs. The State & Ors 16 BLT (AD)255 Section-114(g) The adverse presumption in the background of illustration (g) of section 114 of the Evidence Act can be drawn against the party or the parties in the suit if he or they do not depose about a fact when he or they personally knowing the whole circumstances of the case is not deposing in the case or that in a situation when particular thing being exclusively known to or within the knowledge of a party he ought to have appear before the Court to explain the same or a party who had personal knowledge of the case, then there was necessity to go into the witness box to depose about the fact which was within the exclusive knowledge or matters about which suitor(s) alone has actual knowledge and he alone is competent to state about the matter at the relevant time or that the suitor (s) who is a material witness as regard particular mater then if not give evidence or a party whose evidence is material does not go into witness box the Court in such a situation can draw up an adverse presumption against such person(s) or suitor(s). Hajee Lal Miah Vs. Nurul Amin & Ors. 13 BLT (AD)145 Section-114(g) বিবাদী দরখাস্তকারী এই মোকদ্দমায় মূল বিবাদী হওয়া সত্ত্বেও এবং ঘটনাবলী সম্পর্কে সর্বাপেক্ষা ওয়াকিবহাল হওয়া সত্ত্বেও সে নিজে কোন সাক্ষ্য প্রদান করে নাই বা সাক্ষ্য প্রদান না করিবার কোন কারণও আদালতের সম্মুখে উপস্থাপন করে নাই। এই প্রসঙ্গে সাক্ষ্য আইনের ১১৪(জি) ধারার বিধান ও নীতি প্রনিধান যোগ্য। Md. Motiar Rahrnan Vs. Mst Asia Khatun & Ors 15 BLT (HCD)313 Section- 115 The respondent voluntarily wanted to go retirement as his juniors had obtained promotion. He clearly mentioned in his letter that he did not have the requisite qualifying service to opt for retirement, even then he sought permission for retirement upon special consideration. It was on such representation the order of release was passed. He is now stopped to challenge the release order. A party litigant cannot be permitted to assume in consistent positions in court, to play—fast and loose, to blow hot & cold, to approbate and reprobate to the detriment of his opponent. Bangladesh Parjatan Corporation & Ors. Vs. Md. Mafizur Rahman & Ors. 2BLT (AD)-49 Section-115 Whether suit is not barred by estoppel and waiver. The plaintiff was threatened with dispossession in a summary way by the defendants and it was under the instant threats of forcible dispossession, he had to pray for yearly lease of the suit property for saving his possession, albeit ‘under protest and lost no time in coming to the court for vindication of his grievance— In the present case the plaintiff was always diligent in asserting his own title in the suit property and he never abandoned his claim of ownership over it nor the defendants were M/Sled by his prayer for annual lease so as to change or alter their position to their detriment and the prayer for temporary lease being obviously under protest and without any prejudice to the rights of the parties, the doctrine of estoppel or waiver has no manner of application in the present case. Maron Mondal & Ors. Vs. A. D. C. (Rev). 6BLT (HCD)-22 Section- 115 Pre-emptor is a co-sharer to the case jote by inheritance and the pre-emptee is a stranger to the case jote—In the instant case the preemptee of course, took such a plea of the principles of waiver, estoppel and acquiescence in his written objection and led some evidence. The pre-emptor, on the other hand, stoutly denied the said assertion and stated that the sale took place stealthily and beyond his knowledge without serving the statutory notice upon him and consequently he had no knowledge about it for quite a long time and he filed the pre-emption case promptly on obtaining the certified copy of the sale deed, following his knowledge about it—Held: Section 96 of the State Acquisition Tenancy Act being a beneficial legislation intended for the convenience of co-sharer of a holding as well as the convenience of tenants holding land contiguous to the land transferred, any provision of law barring the claim of pre-emption must be strictly construed, judged from that angle of vision the claim of waiver and acquiescence made by the pre-emptee must be rejected as being totally unsubstantiated. M. M. Ahmed Sarker Vs. A. Khaleque & Ors. 6BLT (HCD)-66 Section-115 The appellant as a Government servant did not go for voluntary retirement and he was given compulsory retirement from service as a measure of punishment and as such the principle of estoppel is not attracted in the facts and circumstances of the case in as much as the appellant under compelling circumstances had to accept the financial benefits from the Government as contended by the appellant’s counsel. Held : We are of the opinion that acceptance of pensionary benefits in the facts and circumstances of the present case cannot be accepted as estoppel within the meaning of section 115 of the Evidence Act. Md. Jahangir Kabir Vs. Bangladesh 4BLT (AD)-14 Section—115 Whether an attesting witness is bound by the contents of document. There is no evidence in the instant case that Sheikh Bagu had any knowledge about the contents of the document attest ed by him beyond his mere attestation. Therefore it cannot be said that Sheikh Bagu was in any way bound by the trans action by the kabala in question. Amanatullah & Ors. Vs. Ali Mohammad Bhuiyan & Anr. 6BLT (AD)-1 Section-115 Doctrine of Promissory Estoppel Plaintiff remained in possession over suit property since the year 1968 first as a tenant under Md. Amin and then under the Government as an allottee and plaintiff paid Government including all arrear rents and Government also took decision that the suit property would be sold to plaintiff on the price fixed by it, Equity and natural justice demand that plaintiff is not be. deprived of the suit property. Government, thus is very much bound by its promise to sell the property in favour of plaintiff and it cannot now fall back and also cannot say that the suit property would be put to auction—on the strength “Doctrine of Promissory Estoppel” defendant Government is under a legal duty to execute a document of title with respect to suit property on acceptance of the price fixed by valuation committee constituted by defendant Government and the selling of suit property by auction to anybody else otherwise than plaintiff is illegal. Govt. of Bangladesh Vs. A.S. M. Ferojuddin Bhuiyan 9BLT (HCD)-149 Section —115 Admittedly, Fourth-Twelfth Defendants- Opposite parties as Plaintiffs Instituted a suit being Title Suit No.306 of 1978 in the Sixth Court of Munsif at Dhaka for declaration that exparte decree passed in Title Suit No. 195 of 1967 is void, fraudulent, in-operative, illegal and not binding upon Plaintiffs. In the plaint, Plaintiff-Petitioner Sreemati Han Rani Basak had been depicted as daughter of Kala Chand Basak, resident of 26, Mohajanpur Lane, Police Station Sutrapur, Dhaka. In the face of showing Plaintiff-Petitioner Sreemati Han Rani Basak as daughter of Kala Chand Basak it does not lie in the mouth of Fourth-Twelfth Defendants-opposite parties to install the case that plaintiff-petitioner Han Rani Basak is not the daughter of Kala Chand Basak and Fourth-Twelfth Defendants are bound by their admission and they Stand estopped/precluded to say that plaintiff is not the daughter of Kala Chand Basak. Sree Narayan Chandra Basak & Ors Vs. Govt. of Bangladesh & Ors (HCD)506 Section-115 read with State Acquisition and Tenancy Act, 1950 Section-95 and 95A The plaintiff attested the Kabala of defendant No. 1, exhibit A(2). The plaintiff explained in his deposition that he put his signature on the request of the defendant and that he thought that the deed was in respect of other land. He also stated that they live as neighbors—by attestation to deed exhibit A(2), the plaintiff cannot be held to have knowledge of the contents of the deed, exhibit A (2) in order to be estopped under Section- 115 of the Evidence Act for claiming restoration of the suit and under Section-95 and 95A of the State Acquisition and Tenancy Act, 1950. Mrs. Wahida Begum & Ors. Vs. Tajul Islam & Ors. 8 BLT (HCD)-238 Section-135 When there are two sets of defendants to contest the suit and if one set of defendants goes to supports the claim of the plaintiffs’ wholly or in part, when in that case that set of defendants should be asked to cross-examine the witness of the plaintiff first as contended by the petitioner’s Advocate. Held : Admittedly there is nothing in the Code specifically as to which of the defendants should cross-examine any prosecution witness first and hence, a court is to fall back on section 135 of the Evidence Act which speaks of the discretion of the court to fix the order of production and examination of witnesses, of course such discretion should be exercised judicially and not arbitrarily in the facts and circumstances of each case. Shamsul Alam Ors. Choudhury & Ors. Vs Amirul Rahman 3BLT (HCD)-170 Section-138 Examination of witnesses and their cross-examination The right of the adverse party to cross- examine a witness is never confined to the facts deposed to by the witness in his examination-in-chief but it extends to all matters relating to the suit. The adverse party has the right to cross-examine a witness on all facts relevant in the suit. Md. Khalilur Rahman Vs. Md. Asgar Ali 7BLT (HCD)-352 Section-138 Principle on Re-Examination It is well-settled that where is no ambiguity or where there is nothing to explain, questions which are to be put in reexamination with the sole object of giving a chance to the witness to undo the effect of a previous statement cannot be allowed. To be precise, re-examination shall not be allowed to destroy the effect of cross-examination. Ihteshanur Rahman Vs. Most. Masuda Khatun & Ors. 6BLT (HCD)-47 Section-167 Section 167 of the Evidence Act provides that if there is sufficient evidence to justify the decision then improper admission or rejection of the evidence will be no ground for a new trial. Jamaluddin & Ors. Vs. Abdul Majid & Ors. 6BLT (AD)-137 Burden of proof In the present case, the material question of waiver by the pre-emptor and refusal to purchase the case land is the material issue—In this case the onus lies on the pre–emptee to prove the case of waiver as because it is the pre-emptie’s assertion that the preemptor refused to purchase when specifically requested to do so before the sale. Most. Rokeya Begum Vs. Md. Abu Zaher & Ors 8BLT (AD)-134 The basic document of Title—doubtful nature The learned Judges of the High Court Division found that the suit land admittedly belonged to defendant Nos. 1-34. The plaintiffs asseted that they purchased the suit land in auction in Certificate case No. 10168 of 195060 and got possession therein. The plaintiffs produced photocopies of sale certificate and writ of delivery of possession which were not admitted in evidence by the trial court. The lower appellate court. however, accepted the photocopies as additional evidences. The learned Judges of the High Court Division found that the trial Court gave proper reasons for not accepting those photocopies as there was no explanation as to what happened to the original copies of the sale certificate and delivery of possession and that there was no evidence on record to show that any witness testified that those were the photocopies of the originals. Secondary evidence was wrongly admitted without any cogent explanation. There was no statement in the plaint or in the deposition that the originals were lost or destroyed. Further from the evidence on record it was found by the learned Judges of the High Court Division that plaintiff Nos. 3, 4, 6 and 14 were not born at the time of auction sale and as such the question of auction purchase in the name of unborn person does not arise. The learned Judges themselves also saw the photocopies Ext. 2 and 2a (as marked by lower appellate court) and found that those photocopies were different from those filed in the trial court. The learned Judges or the High Court Division rightly reversed the finding of the lower appellate court. It further appears from the record that the certificate case was started in 1959-60, but the plaintiffs claimed to have purchased the suit land on 16.06.1979 and got possession on 20.02.1981. The sale was set aside by the certificate officer and the lower appellate court did not consider this aspect at all. The basic document of title of the plaintiffs being of a highly doubtful nature the learned Judges committed no illegality in setting aside the Judgment of the lower appellate court and restoring those the trial court. Kazi Abdul Khaleque & Ors. Vs. Abdul Kader & Ors 8BLT (M))-150 Circumstantial Evidence P.W.4 Abdul Aziz who claimed to be a night-guard in the area of Armenitola and the stated that he saw deceased Akber Shekh and Sultan Ahmed P.W.2 to go together by rickshaw towards Anananda Moyee School. At United Transport Agency, very near to the place of occurrence he heard the firing sound and saw these two accused Ali Jan and Fazlu, Asad, Naim and two others running away crossing the wall of Armanitola field. It is not denied that near the place of occurrence there is Armanitola Math having a boundary wall. P.Ws. 14 and 6 have stated that they got this information from p.W.4 in their house and in hospital immediately after the occurrence. All other P.Ws. also heard from P.W.4 that he saw these two accused running away from the place of occurrence-This strong circum-stance lends support to the presence of the accused- persons at night in the plan of occurrence. Md. Nurul Alam Vs. Ali Jan & Ors. 8BLT(AD)-23 Ends of Justice Ends of justice can never be the caprice or sweet will of a court. The court must proceed on sound principles. F. Alam & Ors. Vs. Zobaida Nalmr & Ors. 5BLT (AD)-88 Estoppel or Waiver of Legal Dues It appears to us that the decree which the respondent obtained was an inexcusable decree. He could not have compelled the Government to reinstate him in service on the basis of that decree. If he wanted his full relief he should have preferred an appeal against the said decree re-agitating the question of his reinstatement in service, arrear salary and promotion. But once the Government takes a decision to reinstate him in service, whether by way of executing an otherwise inexcusable decree or by its own volition, without reappointing him or giving him any break in service, the respondent will b deemed to be in service throughout the period of his removal. Invalidation of the order of removal by the Government itself means as if no order of removal was passed. The incumbent continues in service. Being in service, salary is his due. There can be no waiver of his legal dues. The question of estoppel also does not arise. Government of Bangladesh Vs. Shamsuddin Ahmed 7BLT (AD)-260 Essentials of Adverse Possession Adverse possession must be hostile, notorious, continuous uninterrupted and actual—in the instant ease defendants witness D.W. I himself admits plaintiffs possession before their claim of adverse possession— adverse possession must be proved to have been computed for 12 years before Filing of the suit—relied on 19 DLR-912, I DLR (Dhaka) P-395 and 49 DLR (AD) 61. Md. Bahar Ali Sarder & Ors Vs. Halima Khatoon & Anr 6BLT (HCD)-31 Prima facie title The lower appellate Court has rightly noticed that since the defendant admitted that Harish Chandra Mistry was the C. S. recorded tenant of the suit plot being C. S. Khatian No.272 and plot No.1689 measuring .57 decimals there was no evidence how Atul Behari, Bhupati Mohan Sarker and Haripada Sarker could be the owners of the suit land. The defendant did not disclosed how the said Atul Behari Sarker, Bhupati Mohan Sarker and Haripada Sarker became the owners of the suit land. D. W. 1, could not explain as to how the defendant got the suit land. He has no knowledge about the S. A. recorded tenants and the lower appellate Court has correctly held that in the absence of any evidence it cannot be held that Atul Behari Sarker, Bhupati Mohan Sarker and Haripad Sarker were the owners of the suit land. It is therefore clear from the genealogy of the plaintiffs that the plaintiffs are the successive heirs of the admitted C. S. recorded owner Hans Chandra Mistry and therefore the plaintiffs have proved their prima facie title in the suit land. Md. Abdul Baten Vs. Vebla Chandra Mistry Moolin & ors. 11BLT (HCD)-287. Family Court Ordinance Section 3- Section 3 of the Ordinance envisages that notwithstanding anything contained in any other law the provisions of this Ordinance shall apply to cases filed under this Ordinance. A relief provided in an Act cannot be taken away by implication simply because similar relief has been provided in a subsequent Act without repealing the provision for relief in the previous Act. The power of the Magistrate to act under section 488 CrPC has not been taken away by promulgation of the Family Courts Ordinance. Rezaul Karim vs Rashida Begum 1996 BLD 111. Section 3-The contention that the provision of section 3 of the Ordinance overrides other Laws cannot be accepted as a relief provided in an Act cannot be taken away by providing similar relief in a subsequent Act instead of repealing. the provision in the previous Act. Rezaul Karim vs Rashida Begum 1 BLC 198. Section 3-The Family Appellate Court cannot exercise power in sending the suit back on remand to the Family Court for disposal and it can only decide the appeal keeping its authority within the four walls of the Ordinance itself. Atiqur Rahman (Md) vs Ainunnahar 52 DLR 453. Sections 3, 5 & 4–Family Courts Ordinance applies to all citizens irrespective of religion. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47. Sections 3 & 5-Plaintiff's suit for enhanced maintenance for her daughter under the Ordinance upon fresh cause of action is maintainable notwithstanding the earlier order of the Magistrate in exercise of jurisdiction under section 488 CrPC. Kowsar Chowdhury vs Latifa Sultana 54 DLR 175. Section 4-The Family Courts Ordinance has not taken away any personal right of any litigant of any faith. It has just provided the forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47. Sections 4, 3 & 5–Family Courts Ordinance applies to all citizens irrespective of religion. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47. The word "divorce" means the termination of marital ties between two living persons brought about by any means recognised by law whereas "Talaq" of the Muslim Law which almost invariably connotes the termination of marital ties by the unilateral act of the husband, has almost universally been translated as "Divorce" but the restricted meaning cannot be given to the word 'divorce' occurring in section 2 of Act IX of 1875 i.e. Majority Act. Mst Satbahrai vs Nur Elahi 6 DLR (WP) 194. Divorce by talaq-Any Muslim of sound mind, who has attained puberty, divorce his wife whenever he desires without assigning any cause (Baillie, may 208-209). Contingent Divorce-A divorce may be pronounced so as to take effect on the happening of a future event. In an Allahabad case the husband agreed to pay his wife maintenance within a specified time and in default the writing to operate as a divorce. It was held that on the husband's default the writing took effect as a valid divorce. Bachchoo vs Bismillah (1936) All. LJ 302, 163 IC 288. ('36) AA 387. [Baillie, 218]. Talaq may be oral or in writing-A talaq may be effected (A) orally (by spoken words) or (B) by a written document called a talaknama. Ma Mi vs Kallander Ammal (1927) 54 IA 61.5 Rang. 18: 100 IC 1, (27) A.pc, 15; 2 Rang. 400. Oral Talaq No particular form of words is prescribed for effecting a talaq. If the words are expressed (saheeh) or well understood as implying divorce, no proof of intention is required. If the words are ambiguous (kinayat), the intention must be proved. Ma Mi vs Kallander Ammal, supra; Asha Bibi vs Kadir (1909) 33 Mad. 22.3 IC 730; (1914) 36 All. 458, 25 1C 387; (1888) 12 Mad. 63. It is not necessary that the talaq should be pronounced in the presence of the wife or even addressed to her. Ma Mi vs Kallander Ammal. supra; Ahmad Kasim vs Khatoon Bibi (1932) 59 Cal. 833, 141 IC 689, (33) AC 27; (1909) 36 Cal, 184, 1 IC 740; (1905) 30 Bom. 536. In a Calcutta case the husband merely pronounced the word "talaq" before a family council and this was held to be invalid as the wife was not named. Furzund Hussein vs Janu Bibee (1878) 4 Cal. 588. Rashid Ahmed vs Anisa Khatoon (1932) 59 IA 21. 54 All. 46. 135 IC 762, (32) APC 25. The Madras High Court has also held that the words should refer to the wife. The talaq pronounced in the absence of the wife takes effect though not communicated to her, but for purposes of dower, it is necessary that it should come to her knowledge. (1909) 36 Cal. 184. and her alimony may continue till she is informed of the divorce. (1944) 1 MLJ 17, 214 IC 38 (44) AM 227; 1982 BCR 23. Divorce (talaq) under the Muslim Family Laws Ordinance 1961-See section 7 of the Muslim Family Laws Ordinance Supra. Talaq in writing A talaknama may only be the record of the fact of an oral talaq. Rashid Ahmed vs Anisa Khatun (1932) 59 IA 21. 54 All. 46. (32) APC 25. Or it may be the deed by which the divorce is effected. The deed may be executed in the presence of the Kazi. Sarabai vs Rabiabia (1905) 30 Bom. 537. or of the wife's father. Waj Bibee vs Azmut Ali (1868) 8 WR 23. or of other witnesses. Rajasaheb. In re (1920) 44 Bom. 44. 51 IC 513; (1932) 59 Cal. 833. The deed is said to be in the customary form if it is properly superscribed and addressed so as to show the name of the writer and the person addressed. If it is not so superscribed and addressed, it is said to be in unusual form. If it is in customary form, it is called "manifest" provided that it can be easily read and comprehended. If the deed is in customary form and manifest the intention to divorce is presumed. Otherwise the intention to divorce must be proved in the undernoted cases. Sarabai vs Rabiabai 30 Bom 531. (1936) 163 IC 953. (36) Al 611. The talaqnamas were held to be customary and manifest and so operative without proof of intention. On the other hand, if the deed is in the form of a declaration not addressed to the wife or any other person, it is not in customary form and is not effective if there was no intention to divorce. Rasul Bakhsh vs Mt. Bholan (1932) 13 Lah. 780. 138 IC 134 (32) AL 498. If the talaknama is customary and manifest it takes effect immediately even though it has not been brought to the knowledge of the wife. Ahmad Kasim vs Khatoon Bibi (1932) 59 Cal. 833. 141 IC 689. (33) AC 27; (1920) 44 Bom. 44. 54 IC 573; (1936) 163 IC, 953, (36) AL 611. In a Bombay case the talaknama was communicated to the wife within a reasonable time and the Court observed that Page 1 this was sufficient. (1920) 44. Bom 44. 54 IC 573. This, however, was not a finding that communication within a reasonable time is necessary and the talaknama operated from the date of execution. But as in the case of an oral talak communication may be necessary for certain purposes connected with dower. maintenance and her right to pledge her husband's credit for means of subsistence. Ahmad Kasim vs Khatoon Bibi (1932) 59 Cal. 833. 141 IC 869 (33) AC 27 (61) AB 121. If an acknowledgment of divorce is made by the husband, the divorce will be held to take effect at least from the date upon which the acknowledgment is made. Asmat Ullah vs Khatun-un-nisa (1939) All. 763; (1939) AL J 804, 184 IC 617. (39) AA 592; PLD (1955) Kar, 185. Shia Law A talaq under the Shia Law must be pronounced orally in the presence of two competent witnesses: Baillie, II, 117, A talaq communicated in writing is not valid, unless the husband is physically incapable of pronouncing it orally: Baillie, II, 113-114. A written divorce is exceptional. Ali Newaj vs Md Yusuf 15 DLR (SC) 9; PLD (1963) SC 51. When talaq in writing becomes irrevocable in the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce (talaq-i-bain) and takes effect immediately on its execution. (1905) 30 Bom. 537; (37) AI 270. [Baillie, 234] In a Bombay case, a Hanafi Muslim appeared before the Kazi of Bombay and executed a talaknama, which ran as follows: "As on account of some disagreement between us, there has arisen some ill feeling, I the declarant, appear personally before the Kazi of my free will, and divorce Saravai, my wife by nika, by one bain-talaq (irrevocable divorce), and renounce her from the state of being my wife". In the course of his judgment, Batchelor, J, said: "To my mind this talaknama is decisive" (1905) 30 Bom 537, 546; 13 Lah. 780; 138 IC 134; 10 Lah. 470; 114 IC 74. Muslim Family Laws Ordinance, 1961 and Talag-e-Tafweez-As per the provisions of section 8 of the said Ordinance, where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provisions of section 7 (notice, penalty for default, arbitration, conciliation and effectiveness of talaq) shall so far as applicable, apply. Syeeda Khanum vs Muhammad Sami (1952) Lah. 89. (52) P Lah. 113; 9 DLR 455; PLD 1967 Dacca 421.8 DLR 601; Momtazuddin vs Faruk Sultan PLD (1960) Kar 409. Stipulation by wife for right of divorce-An agreement made, whether before or after marriage, by which it is provided that the wife should be at liberty to divorce herself in specified contingencies is valid, if the conditions are of a reasonable nature and are not opposed to the policy of the Muslim Law. When such an agreement is made, the wife may, at any time after the happening of any of the contingencies, repudiate herself in the exercise of the power, and a divorce will then take effect to the same extent as if a talaq had been pronounced by the husband. Hamidoola vs Faizunnissa (1882) 8 Cal. 327: (1909) 36 Cal. 23: (1915) 19 CWN 1226. 31 IC 562; (1919) 46 Cal. 141. 48 IC 609; (1936) 161 IC 701, (36) All 716, 59 CWN 139. The power so delegated to the wife is not revocable, and she may exercise it even after the institution of a suit against her for restitution of conjugal rights. (1919) 45, Cal. 141, 48 IC 609.[Baillie, 19]. In a case where a kabinnamah gave the wife the power to divorce herself if the husband "did not give her maintenance for two years," it was held by the Dhaka High Court that the wife would be entitled to exercise this power only if her right to separate maintenance was established according to Mohammedan law. Ahmed Ali vs Sabha Khatun Bibi (1951) Dacca 793, (52) P, Dac 216. Tumleek-"Tumleek", according to Mohammedan Jurists, means making another the malik or owner of a thing and includes ordinary cases of sale and gift and such other transactions belong to the group of acts under the category of "Isbatat". "Isbatat" includes divorce, release and such other acts by which existing rights are brought to an end. Aklima Khatun vs Mohibur Rahman PLD 1963 Dacca 602. At any time after the happening of the contingency-Where a power is given to a wife by the marriage contract to divorce herself on her husband marrying again, then if her husband does marry again, she is not bound to exercise her option at the very first moment she heard the news. She has a continuing right to exercise the power. Ayatunnessa Bebee vs Karam Ali (1909) 36 Cal. 23.1 IC 513. The mere happening of the event under which the wife would be entitled to exercise the right does not ipso facto dissolve the marriage. She must actually exercise the power. Aziz vs Mst Nero (55) All P 32. Talaq under compulsion-If the words of divorce used by the husband are "express" the divorce is valid even if it was pronounced under compulsion. Ibrahim vs Enayetur (1869) 4 Beng. LR AC 13. or in a state of voluntary intoxication, or to satisfy his father or someone else. Rashid Ahmed vs Anisa Khatun (1932) 59 IA 21, 27, 54 All. 46. 52-53. 135 IC 762: (.32) APC 25. [Hedaya, 75: Baillie, 208. It was held in a case that the Muslim (Hanifi) law provides that talaq, even if it is pronounced under any form of compulsion or by way of jest, becomes effective and irrevocable as soon as it is pronounced. Muhammad Azam Khan vs Akhtarun-Nissa Begum (1957) 1 WP 1100, (57) P. Lah. 195. Distinction between khula and mubara'at-In Khula, the marriage is dissolved by an agreement between the parties for a consideration paid, or to be paid, by the wife to the husband, it being also a necessary condition that the desire for separation should come from the wife. Where the desire for separation is mutual there too dissolution by mutual agreement for a consideration to be paid by the wife to the husband is lawful, but it is described in that case as mubara'at. Seyeeda Khanam vs Muhammad Sami (1952) Lah. 89, (.52) P Lah. 113. Where the wife asked for divorce and the husband did not seek the severance of the marital tie, and by compromise the marriage was severed it was held that this was a case of khula and not mubara'at. PLD 1964 SC 486; PLD 1967 SC 97; 1959 P Lah 566. Apostasy from Islam and dissolution of a Muslim marriage-(1) Before the Dissolution of Muslim Marriages Act, 1939, apostasy from Islam of either party to a marriage operated as a complete and immediate dissolution of the marriage [('38) AL. 482; 7 IC 342,33 All 90, 165 IC 666]. (2) Under section 4 of the Dissolution of Muslim Marriages Act, 1939, however, mere renunciation of Islam by a married woman or her conversion to any other religion cannot by itself operate to dissolve her marriage but she may sue for dissolution on any of the grounds mentioned in section 2 of the Act. (3) Section 4 only applies to the case of apostasy from Islam of a married Muslim woman, and apostasy of the Muslim husband would still operate as a complete and immediate dissolution of the marriage. Page 1 (4) The provisions of section 4, however, do not apply to a woman converted to Islam from some other faith, who re-embraces her former faith. A Ghani vs Azizul Huq (1912) 39. Cal. 409, 14 IC 641; (1933) All. LJ 733, 145 IC 156. (33), AA 433. In such a case, the law as it stood before the Dissolution of Muslim Marriage Act, 1939, will apply and the conversion will operate as a dissolution of the marriage. (5) Apostasy from Islam of the husband operates as a complete and immediate dissolution of the marriage. A Muslim husband becomes a convert to Christianity. The wife then marries another man before the expiration of the period of iddat. Is she guilty of bigamy under section 494 of the Penal Code? No, because apostasy operates as an immediate dissolution of marriage. Agreement for future separation-The High Court of Bombay has held that an agreement between a Muslim husband and wife which provides for future separation in the event of disagreement between them is void as being against public policy. Dissolution as per the provisions of the Dissolution of Muslim Marriages Act (VIII of 1939)-The Dissolution of Muslim Marriages Act was passed in order to consolidate and clarify the provisions of Muslim law relating. to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie. The Act came into force on the 17th March, 1939 and lays down grounds of divorce. Incompatibility of temperament as ground of dissolution- Incompatibility of temperaments and hatred of the wife for her husband are not recognised by Muslim law as ground of divorce. Umar Bibi vs Mohammad Din (1944) Lah. 542, 220 IC 9; (45) AL 51. Where the wife sues for dissolution on the ground of li'an the marriage cannot be dissolved if the husband bona fide retracts the charge of adultery. Tufail Ahmed vs Jamila Khatun 1962 A A 570; (1944) Lah 542; 220 IC 9; (.45) AL 51; 8 DLR 601; (1950) Lah 773; (.50) P Lah 504. Li'an or imprecation-The wife is entitled to sue for a divorce on the ground that her husband has falsely charged her with adultery. She must file a regular suit for dissolution of her marriage as a mere application to the Court is not the proper procedure. If the charge is proved to be false, she is entitled to a decree, but not if it is proved to be true. Kabil Gazi vs Madari Bibi (1933) 57 Cal. LJ 106; 145 IC 828; (.33) AC 630; (1934) 59 Car LJ 466: (1919) 41 All 278; 49 IC 256; (1928) 62 Bom 295. 110 IC 131; (.28) AB 285; (1865) 3 WR 93 (1928) Page 1 52 Bom 285 (.28) AB 285. No such suit will lie if the marriage was irregular [Baillie. 337]. Judicial divorce on other grounds-According to old author if the wife was not entitled to a judicial divorce on any other ground such as the conjugal infidelity of the husband or his inability to maintain her (Baillie, 443) or cruelty. But the Calcutta High Court has held that cruelty and desertion are grounds for divorce. Kadir vs Koleman Bibi (1935) 62 Cal. 1088.39 CWN 896; 61 CLJ 342, 163 IC. 188; РLD 1963 Dac 947, 229 IC 220; (.48) АА 34. Incompatibility of temperament is not a ground for divorce. Mustafa Begum vs Mirza Kazim Raze Khan (1933) 8 Luck, 204; 142 IC 46. (.33) AO 15. Section 5 of the Shariat Act empowers the District Judge to give a divorce on the wife's petition. Section 8 of the Muslim Family Laws Ordinances, 1961 recognises wife's absolute right to divorce also otherwise than by talaq. Wife's costs in proceedings for divorce-The rule of English law which makes the husband in divorce proceedings liable prima facie for the wife's costs except when she is possessed of sufficient separate property does not apply to divorce proceedings between Mohammedans. A vs B (1996) 21 Bom. 77. If the marriage was not consummated, and the amount of dower was specified in the contract she is entitled to half that amount. Tajbi vs Nattar Sherif (1940) 2 MLJ 345. (1940) MWN 864, 191 IC, 728.(.40) AM 888. If no amount was specified, all that she is entitled to is a present of three articles of dress. But now as per the provisions of section 10 of the Muslim Family Laws Ordinance, 1961, the entire amount of dower is to be paid on demand, where no mode of payment is specified in the Nikhanama. Where a marriage is dissolved upon the apostasy of the wife, she is entitled to the whole of the dower if the consummation of the marriage has taken place AM Md Ebrahim vs Ma Ma, & anr. (1939) Rang. 383, 179 IC 47, (.39) AR 28. (3) Mutual rights of inheritance, cease-Either party is entitled to inherit from the other until the divorce becomes irrevocable. Immediately the divorce becomes irrevocable, mutual rights of inheritance cease, except where the divorce was pronounced during the husband's death- illness, in which case the wife's right to inherit continues until the expiry of her iddat, unless she was repudiated at her own request. Sarabai vs Rabiabai (1905) 30 Bom. 537, 547-548; (1905) 30 Bom. 537, 556-557. (4) Cohabitation becomes unlawful-Sexual intercourse between the divorced couple is unlawful after the divorce has become irrevocable. The offspring of such an intercourse is illegitimate and cannot be legitimated by acknowledgment. Rashid Ahmad vs Anisa Khatun (1932) 59 IA 21, 27, 28, 54 All. 46,53-54, 135 IC 762, (.32) APC 25. (5) Remarriage of divorced couple (i) Where the husband has repudiated his wife by three pronouncements, it is not lawful for him to marry her again until she has married another man, and the latter has divorced her or died after actual consummation of the marriage. The presumption of marriage arising from an acknowledgment of legitimacy does not apply to a remarriage between divorced persons unless it is established that the bar to remarriage created by the divorce was removed by proving an intermediate marriage and a subsequent divorce after actual consummation. Rashid Ahmad vs Anisa Khatun (1937) 59 IA 2/1, 27, 28, 54 All. 46, 53-54; 135 IC 762; (32) APC 25. Even if a remarriage between the divorced persons is proved, the marriage is not valid unless it is established that the bar to remarriage was removed. The mere fact that the parties have remarried does not raise any presumption as to the fulfilment of the above conditions. Akhtaroon-Nissa vs Sharintoollah (1867) 7 WR 268. A marriage without fulfilment of the above conditions is irregular, not void [Baillie, 151]. Section 5-The alleged kabinnama having not been formally proved and marked as exhibit and the witnesses to the kabinnama were also not examined in Court and even the father of the plaintiff did not show any interest to prove the plaintiffs case although he spent money for the alleged marriage, the High Court Division committed error of law in holding that the alleged Kabinnama supports the plaintiffs case. Shah Alam (Md) vs Farida Begum 2 BLC (AD) 92. Sections 5 & 23 Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as enumerated in section 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47. Section 5(a)-Per Mustafa Kamal J : Dissolution of marriage-When a divorce proceeds from the husband, it is called talaq, when effected by mutual consent, it is called Khula or Mubara'at, according as the terms are. The Muslim Family Laws Ordinance, 1961 has given statutory recognition to a wife's right of divorce (Talaq-i-taufiz) in exercise of her delegated power to divorce, as also to dissolution of marriage otherwise than by talaq. There are different modes of talaq according as the pronouncement of talaq is by the husband. In the case of Talaq Ahsan (most proper), a single pronouncement is made during tuhr (period between menstruations) followed by abstinence from sexual intercourse up to three following menstruations, at the end of which talaq becomes absolute. In the case of Talaq Hasan (proper), three pronouncements are made during successive tuhrs, there being no sexual intercourse during any of the following three tuhrs. In the case of Talaq-ul-bidaat or Talaq-i-badai (which is popularly called Bain talaq in Bangladesh), either three pronouncements are made during a single tuhr in one sentence or three separate sentences or a single pronouncement is made during a tuhr clearly indicating an intention to dissolve the marriage irrevocably. This form of talaq is not recognised by the Shafi and Shia Schools of thought but the Muslim Family Laws Ordinance, 1961 recognises "pronouncement of talaq in any form whatsoever" section 7(1). Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 4 BLC (AD) 14. B. Restitution of Conjugal Rights Suit for restitution of conjugal rights-(1) Where a wife without lawful cause ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights. Moonshee Buzloor Ruheem vs Shumsoonnissa Begum (1867) 11 MIA 551. The husband is not entitled to a decree if the marriage though consummated, was an irregular marriage during the period of iddat. Mt. Bakh Bibi vs Quaim Din ('84) AL 997, 154 IC 677. or been validly repudiated. Mt. Bhawan vs Gaman (1934) 146 IC 292, ('34) AL 77; (1936) 59 Bom. 426, 157 IC 694, (35) AB 308. Restitution of conjugal rights is at the Court's discretion and the plaintiff must prove that he has come to Court with clean hands: for instance, where he has married two wives he must prove that he is treating both the wives on an equal footing. Makhan Bibi vs Muhammad Wazir Khan (59) P. Lah 710. (2) Cruelty-Cruelty, when it is of such a character as to render it unsafe for the wife to return to her husband's dominion, is a valid defence to such a suit. "It may be, too, that gross failure by the husband of the performance of the obligation, which the marriage contract imposes on him for the benefit of the wife, might, if properly proved, afford good grounds for refusing to him the assistance of the Court." Moonshee Buzloor Ruheem vs Shumsoonnissa Begum (1867) 11 MIA 551, 615; (1905) 7 Bom LR 602, 608; (1907) 29 All 222; (1918) 40 All. 332. 44 IC 728; ('33) AR 322; (1947) All. LJ 157; 230 IC 239. ('47) AA 16; 1960 АР 293. (3) Agreement enabling wife to live separate from the husband-An agreement entered into before marriage by which it is provided that the wife should be at liberty to live with her parents after marriage is void, and does not afford an answer to a suit for restitution of conjugal right. Abul Hossain Bi 6 Bom. LR 728 (1913) 18 Cal. WN 693; 21 IC 87; (1920) 1 Lah. 597; 60 IC 88; PLD 1967, Lah. 1104; (1920) 7 Lah 597. Similarly, an agreement, entered into after marriage between a husband and wife who were for some time before the date of the agreement living separate from each other, providing that they should resume cohabitation, but that if the wife should be unable to agree with the husband, she should be free to leave him, is void and it is not a defence to the husband's suit for restitution. Meherally vs Sakerkhancobai (1905) 7 Bom LR 602. But an agreement to allow a second wife to live in a separate house and to give her a maintenance allowance has been enforced. Mt. Sakina Faruq vs Shamshad Khan (1936) 165 IC 937, (.36) A, Pesh. 195. But an agreement that husband and wife will live in wife's parent's house is not void and hit by section 23 of the Contract Act. 8 DLR 601. (4) Non-payment of prompt dower and restitution of conjugal rights- The wife may refuse to live with her husband and admit him to sexual intercourse so long as the prompt dower is not paid [Baillie, 125]. (5) False charge of adultery by husband against wife-A false charge of adultery by a husband against his wife is a good ground for refusing a decree for restitution of conjugal right. Musammet Maqboolan vs Ramzan (1927) 2 Luck 182: 101 IC 261. (.27) AO 154; (1865) 3 WR 93. But if the charge is true, and it was made at a time when the wife was actually living in adultery, it is no ground for refusing a decree for restitution of conjugal rights. Jamiruddin vs Sahera (1927) 54 Cal 363; 101 IC 60; (27) AC, 579. Suit for jactitation (false claim) of marriage-A suit will lie between Muslims for jactitation of a marriage. Mir Azmat Ali vs Mahmud-un-nissa (1897) 20 All 96, 97. Section 5-The law of restitution of conjugal right is void-Upon an application under section 24, CPC for transferring a Family Court case, for restitution of conjugal right, from Pirojpur to any other court of competent jurisdiction within larger districts–Khulna, Jessore or Kushtia on the ground that the plaintiff is an associate of bad elements and hooligans of Pirojpur town and the whole object of filing the suit is to compel the defendant to go to Pirojpur and to kill her there, and that the suit cannot proceed and continue any longer as the law itself is void and illegal as per provisions of the Constitution whereupon the High Court Division has held that the restitution of conjugal right either by the husband or by the wife is an invalid and void piece and no suit for restitution of conjugal rights can continue before any Court as the same is void and illegal in view of the provisions of Articles 7, 26(2), 27, 28, 31, and 32 of the Constitution and accordingly, a direction was given to transfer the suit from Pirojpur to Jhenaidah to dismiss the suit, in view of the observation given in the previous judgments, as not maintainable by the transferee Court Sharmin Hossain @ Rupa vs Mizanur Rahman (Tuhin) 2 BLC 509. Section 5-The restitution of conjugal right is a reciprocal right thus it is neither discriminatory nor violative of any of the provisions of the Constitution. Chan Mia (Md) vs Rupnahar 51 DLR 292. C. Dower Dower (mahr) defined-Mahr or dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. Baillie. Vol. Ip 91; Abdul Kadir vs Salima (1886) 8 All 149; (37) AL 345. 171 IC 421; PLD 1975 Lah 739; PLD, 72 Pesh 37; (1886) 8 All 149: (1934) 58 Cal. LJ 251,149 IC 1150, (34) AC 210. AIR 71 Cal 162 Dower and dowry distinguished-Dower is a sum of money receivable by the wife from the husband as a consideration for the marriage, whereas dowry is an extra-dower consideration payable by one party to the marriage to another on the plea of bringing equality in marriage. Taking, or paying or abetting payment of dowry has been made punishable under sections 3 and 4 of the Dowry Prohibition Act, 1980. (Supra) Specified dower-(1) The husband may settle any amount he likes by way of dower upon his wife, though it may be beyond his means, and though nothing may be left to his heirs after payment of the amount. But he cannot in any ca settle less than ten dirhams or equivalent thereof. (.60) AP 511; 32 All 167: 5 IC 411. (2) Where a claim is made under a contract of dower, the Court should unless it is otherwise provided by any legislative enactment, award the entire sum provided in the contract. Sugra Bibi vs Masuma Bibi (1877) 2 All 573 F.B.- (1907) 9 Bom LR 188; (1909) 13 CWN 153, 4 IC 462; PLD 1975 Pesh 121; PLD 1956 Sindh 47; 21 DLR (SC) 145. Dower in Muslim Family Laws Ordinance, 1961-As per the provisions of section 10 of the Muslim Family Laws Ordinance, 1961 where no details about the mode of payment of dower are specified in the Nikanamah, or the marriage contracts; the entire amount of the dower shall be presumed to be payable on demand. High dower is fixed to prevent the husband from divorcing - the wife capriciously. Zakeri Begum vs Sakina Begum (1892) 19 IA 157. 165; 19 Cal 689; PLD 1967 Lah 391; (1936) 161 IC 300. (.36) AL 183; (1939) Rang 383, 179 IC 47, (.39) AR 28; (1936) 164 IC 329, (.36) A Pesh. 178; 20 DLR SC 27; 21 DLR (SC) 145; PLD 1967 Pesh 328. Contract of dower in marriage-The amount of dower may be fixed either before or at the time of marriage or after marriage. Kumar-un-nissa vs Husaini Bibi (1880) 3 All 266 FB: (1926) I Luck 83. 92 IC 265. ('26)AO 186; (1929) 4 Luck 343; 114 IC 504. (.29) AO 520. and can be increased after marriage. Jahuran Bibi vs. Soleman Khan (1933) 58 Cal LJ 251. 149 IC 1150, ('34) AC 210; ('35) AL 816, 160 IC 805; (1940) 189 IC 725 (.40) AL 104; (1944) All. 325. (.44) AA 214. and may be entered into by father. Basir Ali vs Hafiz: (1909) 13 CWN 153,4 IC 462. "Proper" dower-If the amount of dower is not fixed, the wife is entitled to "proper" dower (mahr-i-misl), even if the marriage was contracted on the express condition that she should not claim any dower. In determining what is "proper" dower, regard is to be had to the amount of dower settled upon other famale members of her father's family such as her father's sisters. Hamira Bibi Zubaida Bibi (1916) 43 IA 294. 300. 38 All 581. 36 IC 87, (16) APC. 46. (.52) VS P Pesh 47. "Prompt" and "deferred" dower-The amount of dower is usually divided into two parts, one called "prompt" which is payable on demand, and the other called "deferred," which is payable on dissolution of marriage by death or divorce. The prompt portion of the dower may be realised by the wife at any time before or after consummation. Rehana Khatun vs Iqtidar Uddin (1943) All LJ 98, ('43) AA 184; 9 DLR 8. Dower which is not paid at once may, for that reason, be described as deferred dower, but if it is postponed until demanded by the wife it is in law prompt dower. Mahadev Lal vs Bibi Maniran (1933) 12 Pat, 297, 145 IC 213 [.33] AP 281; 21 DLR 838. But "deferred" dower does not become "prompt" merely because the wife demands it. Manihar Bibi vs Rakha Singh (.54) A Manipur 1; 21 DLR 939: 21 DLR (SC) 145; (59) P. Lah 470; 21 DLR 888; PLD 1960 Kar. 663. Remission of dower by wife-The wife may remit the dower or any part thereof in favour of the husband or his heirs. Such a remission is valid though made without consideration: Jyani Begum vs Umrav Begum (1903) 32 Bom. 612, (1877) I All 483; (48) A L 135. [Baillie, 553]. But the remission must have been made with free consent. A remission made by a wife when she is in great mental distress owing to her husband's death is not one made with free consent and is not binding on her. Nurannessa vs Khaje Mahomed (1920) 47 Cal 537; 56 IC 8; (1942) 44 Bom LR 126 (.42) AB 128; 8 DLR (WP) 133; (1918) 41 Mad 1026; 44 IC 293; (1938) 17 Pat 303. 180 IC 208; (.39) AP 133; (.36) AL 887: (1957) 2 WP 748; (.56) P Kar 363. Suit for dower and limitation-If the dower is not paid, the wife, and, after her death, her heirs, may sue for it. The period of limitation for a suit to recover "prompt" dower is three years from the date when the dower is demanded and refused, or, where during the continuance of the marriage no such demand has been made, when the marriage is dissolved by death or divorce [Limitation Act, 1908, Sch. I, Art. 103]. The period of limitation for a suit to recover "deferred' dower is three years from the date when the marriage is dissolved by death or divorce [ibid, Art. 104]. Where, however, prompt dower has not been fixed, a demand and refusal is not a condition precedent for filing a suit for its recovery. Muhammad Taqi Khan vs Farmoodi Begum (1941) All, 326; (1941) ALJ 118. IC 353, (.41) AA 181; 1933 142 IC 833. (.33) A Pesh 31; PLD, 1945 Lah 739, 19 DLR, (WP) 50; (1911) 38 All 568; 10 IC 282; (1941) 198 IC 26, (.41) AL 166. Non-payment of prompt dower and restitution of conjugal rights-The wife may refuse to live with her husband and admit him to sexual intercourse so long as the prompt dower is not paid [Baillie, 125]. If the husband sues her for restitution of conjugal rights before sexual intercourse takes place, non-payment of the dower is a complete defence to the suit, and the suit will be dismissed. If wife may the suit is brought after sexual intercourse has taken place with her free con" the proper decree to pass is not a decree of dismissal, but a decree for restitution conditional on payment of prompt dower. Abdul Kadir vs Salima (1886) 8 Al 149; (1888) 11 Mad. 327; (1905) 30 Bom. 122; (1890) 17 Cal. 670; (1933) 55 All. 743; 148 IC 26; (.33) AA 634; (1941) 188 IC 130. (.66) AA 548. Liability of heirs for dower debt-The heirs of a deceased Muslim are not personally liable for the dower debt. As in the case of other debts due from the deceased, so in the case of a dower debt, each heir is liable for the debt to the extent only of a share of the debt proportionate to his share of the estate. Imperial Bank Gaya vs Bibi Sayeedan (.60) AP 132. Where the widow, therefore, is in possession of her husband's property under a claim for her dower, the other heirs of her husband are severally entitled to recover their respective shares upon payment of quota of the dower debt proportionate to those shares. Hamira Bibi vs Zubaida Bibi (1916) 43 IA 294; 38 All 581; 36 IC 87. Dower is a debt, but an unsecured debt–The dower ranks as a debt, and the widow is entitled, along with other creditors of her deceased husband, to have it satisfied on his death out of his estate. Her right, however, is no greater than that of any other unsecured creditor; except that she has a right of retention of possession of her husband's property until her dower is satisfied. She is not entitled to any charge on her husband's property though such a charge may be created by agreement. Bebee Bachun vs Sheikh Hamid (1871) 14M IA 377:383- 384; (1916) 43 IA 294; 301; 38 All 581; 36 IC 87; (1941) Nag 164;. (1940) NLJ 647; 192 IC 286; (.41) AN 8: (1940) ALJ 789; (.40) AA 521 (.53) ASC 413; (.61) AA Andhra Pradesh 428; (1855) 6 MIA 211. Widow's right to retain possession of husband's estate in lieu of dower-The widow's claim for dower does not entitle her to a charge on any specific property of her deceased husband. But when she is in possession of the property of her deceased husband, having, "lawfully and without force or fraud" obtained such possession "in lieu of her dower" (that is on the ground of her claim for her dower, to satisfy her claim out of the rents and profits and with a liability to account for the balance), she is entitled as against the other heirs of her husband. Bebee Bachun vs Sheikh Hamid (1871) 14 MIA 377; (1925) 52 IA 149 IC 1150; (.34) AC 210; (1937) 18 Lah 649; (.37) AL 738. and as against the creditors of her husband. Mt. Ghafooran vs Ram Chandra Das (.34) AA 168; (1936) All LJ 1027 164 IC 515. (36)AA 600; 197 IC 241: 182 IC 801; 32 All. 563 (1920) 43 Mad, 214: 53 IC 905; 44 Bom. LR 126; 51 Cal. 124; 1941 Pat. 798: 22 All, 563. to retain that possession until her dower is satisfied. Liability of widow in possession to account-A widow in possession of her husband's estate, in lieu of dower is bound to account to the other heirs of her husband for the rents and profits received by her out of the estate. Bebee Bachun vs Sheikh Hamid (1871) 14 MIA 377, 384; (.61) A, An Pr. 428. But she is entitled in that case to compensation for forbearing to enforce her right to the dower debt. Hamira Bibi vs Zabaida Bibi (1916) 43 IA 294; 38 All. 581; 36 IC 87 affing (1910) 33 All 182; 7 IC 497 (1868) 9 WR 318; (1911) 38 Cal. 475.; 480 481; 9 IC 1031; (1926) 43 All. 808, 93 IC 978; (.26)AA 39; (.42) A Pes 26. No right of widow to alienate property to satisfy dower debt-The right of a widow to retain possession of her husband's property under a claim for her dower does not carry with it the right to alienate the property by sale, mortgage, gift or otherwise. Chuhi Bibi vs Shams-un-nissa (1894) 17 All 19: (1925) 52 IA 145; 47 All 250; 86 IC 579. (1919) 41 All 538. 51 IC 242; (1920) 43 Mad 214; 238 53 IC 905; (1927) 2 Luck. 553; 101 IC 714; (.28) AO 209: (1935) 10 Luck 440; 153 IC 93. (.35) АО 68; (1944) 213 IC 306: (44) АС 163: (1944) 22 Рat. 750; (.44) AP 174. Suit for possession by widow who is dispossessed-If a widow who is in possession of her husband's property under a claim for her dower, is wrongfully deprived of her possession, she may bring a suit for recovery of possession. Majidmian vs Bibisahab (1916) 40 Bom. 34; 49-50; 30 IC 870; (1885) All 353, (1928) 50 All 86: 103 IC 363; (.27) AA 534. Widow's possession no bar to a suit for dower-The fact that a widow is in possession of her husband's 'property under a claim for her dower, is no bar to a suit by her against the other heirs of her husband to recover the dower debt. But she must in such a suit offer to give up possession of the property. She cannot both retain possession and have a decree for her dower debt. Ghulam Ali vs Sagir-ul-nissa (1901) 23 All 432; (.54) А Р 47; (1923) 45 All. 384, 73 ІC 977; (,23) AА 331. If the widow is in possession of her husband's property under a claim for her dower the proper course for her to follow is to bring an administration suit in which the property can be placed in the hands of the Court for the satisfaction of grant any decree for dower and/or maintenance. Shafiqul Section 5-As the Holy Quran and Hadith of Allah's Apostle (SM) Section 5-Family Court has got every jurisdiction to decide as to whether her claim by sale of the assets or otherwise. Mirza Mohammad vs Shazadi prescribe for giving dower the Court has no right to reduce the prompt dower unless the wife remits it voluntarily. Jesmin Sultana vs Md. Elias 2 BLC 233. the 'kabinnama' in question is a genuine and valid document or not and whether Wahida (1914) 19 CWN 502: 28 IC 191; (.25) AM 1964; 86 IC 367. any marriage between the petitioner and opposite party was ever solemnised or not before it deci Huq (Md) vs Mina Begum 54 DLR 481. D. Maintenance Maintenance defined-"Maintenance" includes food, clothing and lodging This definition of 'maintenance' is not exhaustive. The word includes other necessary expenses for mental and physical well-being of a minor, according to his status in society. Educational expenses were included in the definition in Ahmedullah vs Mafizuddin Ahmad (.73) AIR Gau. 56. Cases under section 488, CrPC were held applicable to define the term. [(.41) A Sindh 214; (.50) A Cal. 465]. Maintenance of wife and children-After divorce wife is entitled to maintenance upto Iddat period; Shah Azmallah vs Imtiaz Begum 11 DLR (WP) 74 which extends to three months; Safura Khatun vs Osman Gani 9 DLR 455; but wife's refusal to obey reasonable instructions of the husband disentitles her to maintenance. Mitha Khan vs Hemayet Bibi 11 DLR (WP) 17; 14 DLR 465; 19 DLR (WP) 50. Where a wife refused to live with the husband and perform marital obligations without valid reason, husband is not bound to maintain her. 4 DLR 613. Past maintenance cannot be claimed by children unless already fixed by Court PLD 1955 Lah. 596. In view of the advance by way of ijtihad made in the right directions within the bounds of Sunni Law, the enunciation on past maintenance made in 1964 by the Lahore High Court being affirmed twice by the Pakistan Supreme Court in this respect should not be overlooked or discarded. The High Court Division was, therefore, wrong in denying past maintenance to the appellant on the ground of lack of prior agreement. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 3 of the Ordinance of 1985 only means that if there are provisions in the Ordinance which.are different from or are in conflict with the provisions of any other law then the provisions of the said Ordinance will prevail. Section 3 does not debar the application of Limitation Act to suits filed under the Ordinance of 1985. The fact that the Ordinance of 1985 speaks of "suit", "plaint", "written statement", "decree", etc. clearly attracts the Limitation Act under section 29(2) thereof. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Residuary Article 120 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Under section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all the six subjects mentioned in section 5 relate to suits exclusively between husband and wife. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. From the expression "other laws" used in section 3 of the Ordinance it appears that the Family Courts Ordinance controls the Muslim Family Laws Ordinance, 1961 and not vice versa. Any person professing any faith is entitled to bring a suit for the purposes enumerated in section 5 of the Ordinance. A Hindu wife is, therefore, entitled to bring a suit for maintenance in the Family Court. Nirmal Kanti Das vs Sreemati Biva Rani 1994 BLD 413. Section 5-Provisons of the Ordinance have empowered the Court to entertain, try and dispose of any suit relating to five matters including maintenance but such power is not given to a Magistrate under section 488, CIPC but power of Magistrate has not been curtailed consequent to the establishment of the Family Court. Rezaul Karim vs Rashida Begum and another 1 BLC 198. Wife is not entitled to a decree for past maintenance unless the claim is based on a specific agreement or a decree of Court-Past maintenance is not available to a child unless it has become due under either the decree of the court or agreement by the father. 1990 BLD 434. Maintenance of children and grandchildren-(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they 2/1 are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy does not relieve the father from the obligation of maintaining them. Emperor vs Ayshabai (1904) 6 Bom LR 536; (1913) 37 Bom 71; 15 IC 520 (1933) 14 Lah 770; 147 IC 123; (.33) Al 969; (1928) 9 Lah 313; 112 IC 476 (.28) AL 543: PLD 1967 Dac. 575: PLD 1961 Kar 12; (1941) Mad 760 (1941) 1 M 503. (1941) MWN 308. (41) AM 582: (55) A. Hyd. 144, (1955) Page 1 Hyd, 418; 1950 AIR Cal. 465. But the father is not bound to maintain a child who is capable of being maintained out of his or her own property. (2) If the father is poor, and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be. (3) If the father is poor and infirm, and the mother also is poor, obligation to maintain the children lies on the grandfather, provided he is in easy circumstances. A daughter when married passed into her husband's family and there is no obligation on the members of her natural family to maintain her, not even if she is divorced. Pakrichi vs Kunhacha (1913)36 Mad 385; 13 IC 236; (1954) Trav Со. 690. Children in easy circumstances under Mohammedan Law are bound to maintain their poor parents, although the latter may be able to earn something for themselves. These poor parents may also file a suit in a Family Court for maintenance from their opulent children. Similarly, poor or disabled relatives, even servants of the wife, can maintain a suit for maintenance under the Ordinance of 1985 under circumstances enjoined by Mohammedan Law. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Under section 5 of the Ordinance only a Muslim litigant is entitled to bring a suit in the Family Court for matters mentioned in clauses (a) to (e). Krishna Pada Talukder alias Kajal vs Geetasree Talukder alias Baby 1994 BLD 415. Section 5 of the Family Courts Ordinance gives exclusive jurisdiction to the Family Court to try any suit for maintenance. An application for maintenance under section 488 of the Code of Criminal Procedure is not a suit and, as such, the provisions of the Family Courts have not taken away the power óf the Magistrate to order for maintenance under section 488 CrPC. Zinnatan Nessa vs Md Kaloo Mia 1995 BLD 545. Jurisdiction of Family Court to award maintenance-Under this section not only the wife can file a suit in a Family Court for her own maintenance but also she can claim maintenance for children living with her. Even the poor parents can claim maintenance from their opulent children. Jamila Khatun vs Rustom Ali 1996 BLD (AD) 61. As the petitioner voluntarily left her husband and she is not interested to return to her husband and the injury to life also means wife's aversion to live with the husband, there is no cause for granting the decree for restitution of conjugal right but the petitioner is not entitled to get the deferred dower or maintenance. Nur Akhter vs Md Abdul Mabud Chowdhury 1 BLC404. Maintenance where daughter stays away from father-Where the father is entitled to the custody of the daughter and offers to keep her in the house and maintain her, the daughter has no right to separate maintenance unless there are circumstances which justify the daughter in staying away from the father's house. Bayabai vs Esmail Ahmed (1941) Bom. 643; 43 Bom. LR 823; (.41) AB 369; (1945) 47 Bom. LR 345, (.45) AB 390; 21 DLR (WP) 288; (1955) Hyd 418; (54) P Pesh 13. Maintenance of parents-(1) Children in easy circumstances are bound to maintain their poor parents, although the latter may be able to earn something for themselves. (2) A son though in straitened circumstances is bound to maintain his mother, if the mother is poor, though she may not be infirm. (3) A son, who, though poor, is earning something, is bound to support his poor father who earns nothing [Hedaya, 148). Maintenance of grandparents-A person is bound to maintain his paternal and maternal grandfathers and grandmothers if they are poor, but not otherwise, to the same extent as he is bound to maintain his poor father [Baillie, 466]. Maintenance of other relations-Persons who are not themselves poor, are bound to maintain their poor relations within the prohibited degrees in proportion to the share which they would inherit from them on their death. A father is not bound to maintain his son's widow. Mohammed Abdul vs Khairunnissa (1950)52 Bom. LR 133; (50)AB 245. [Baillie, 467]. Statutory obligation of father to maintain his children-If a father, who has sufficient means, neglects or refuses to maintain his legitimate or illegitimate children who are unable to maintain themselves, he may be compelled, under the provisions of the Code of Criminal Proçedure, 1898, to make a monthly allowance, not exceeding five hundred rupees, for their maintenance. ('66) A Raj. 163; (1895) 19 Mad, 461. (1957) 2 WP 113. ('57) P. Lah. 220. Section 5(d)-Maintenance The wife is not entitled to past maintenance. Maintenance can be allowed to her only from the date of institution of the suit before the Family Court till three months after the decree for dissolution of the marriage. Neither the child nor the person who maintains. it can claim past maintenance from the father unless the same is previously fixed. Rustom Ali vs Jamila Khatun 43 DLR 301. The Family Courts Ordinance, 1985 has not ousted the jurisdiction of a Magistrate to exercise power under section 488, CrPC. The provision of the Family Court's Ordinance, 1985 are applicable not only to Muslim community but also to other communities as well. Meher Negar vs Md Mojibur Rahman 1994 BLD 467. The residuary Article 120 of the first schedule will be applicable to a suit for maintenance under the Family Courts Ordinance, 1985 and the plaintiff will be entitled to past maintenance for only 6 years prior to the filing of the suit including the maintenance for the child. Jamila Khalun vs Rustom Ali 1 BLC 56 A person professing any faith has got every right to bring suit for the purpose as contained in this section-a Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance. Nirmal Kanti Das vs Srimati Biva Rani 47 DLR 514. Provisions of this Ordinance are applicable not only to the Muslim community but also to other communities constituting the populace of Bangladesh. Meher Negar vs Mojibur Rahman 47 DLR 18. Provision of the Family Courts Ordinance 1985, have not taken away the maintenance under section 488 CrPC. The power of a Magistrate to order for Session Judge committed error of law in setting aside the order of maintenance passed by the Magistrate. Meher Negar vs.Mojibur Rahman 47 DLR 18. Section 5-After the coming into force of the Family Courts Ordinance the Criminal Court's jurisdiction has been ousted in respect of awarding maintenance except in case of pending proceedings. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47. Section 5-Under the Family Courts Ordinance not only the wife is permitted to file a suit in the Family Court for her maintenance she claim maintenance of her child in the same suit. It was not necessary for the child to file a suit for maintenance himself or to become a co-plaintiff with his mother in suit. Saleha Begum vs Kamal Hossain 50 DLR 180. Section 5-Family Court has got every jurisdiction to decide as to whether the 'kabinnama' in question is a genuine and valid document or not and whether any marriage between the petitioner and opposite party was ever solemnised or not before it decides to grant any decree for dower and/or maintenance. Shafiqul Huq (Md) vs Mina Begum 54 DLR 481. Sections 5 & 3-Plaintiff's suit for enhanced maintenance for her daughter under the Ordinance upon fresh cause of action is maintainable notwithstanding the earlier order of the Magistrate in exercise of jurisdiction under section 488, CPPC. Kowsar Chowdhury vs Latifa Sultana 54 DLR 175. Sections 5 & 24-Sections 5 and 24 of the Family Courts Ordinance are also applicable to the members of other than the Muslim community and they are entitled to avail settlement of disputes regarding maintenance, etc and the Family Court has got the exclusive jurisdiction to try those matters. Ganesh Chandra Das vs Arati Acharjya 54 DLR 348. Sections 5 & 27-Order for maintenance of wife and son-Purpose of the Family Court Ordinance is to provide for speedy disposal of family matters by the same forum. There will be anomaly and multiplicity of proceedings if, in spite of the establishment of Family Courts, the Magistrate continues to entertain cases for maintenance. Provisions made in the Family Courts Ordinance have ousted the jurisdiction of the Magistrates to entertain application for maintenance which is a family court matter. Md Abdul Khaleque vs Selinả Begum 42 DLR 450. Section 5(d)-Whatever be the meaning of Mataa it is certainly not maintenance as can be claimed within the meaning of maintenance under the Family Courts Ordinance. Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 51 DLR (AD) 172. Section 5(d)-There is a clear direction in respect of a pregnant woman who has been divorced and the direction is to bear her expenses till she has delivered. In the case of such a woman her period of Iddat will be till delivery. It is that the maintenance has been related to the period of Iddat. Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 51 DLR (AD) 172. Section 5(d)-Per ATM Afzal CJ: The decision as given by the High Court Division following the Sura Baqarah (II) verse 241 of the Holy Quran that a person divorcing his wife is bound to maintain her on a reasonable scale beyond the period of iddat for an indefinite period that is till she loses the status of a divorcee by remarrying another person and thereby knocked down the traditional Muslim Law as to maintenance which appears to be prima facie ill-considered and ill-conceived as it apparently failed to take into consideration no whole conspectus of Muslim Law relating to marriage and divorce but the various verses of the same Sura and other verses of other Suras and, as such, its interpretation is rejected and set aside. Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 4 BLC (AD) 14. Section 5(d)-Per Mustafa Kamal J: It is plainly inhuman, unjust, inequitable and unfair to impose on a man the burden of maintaining a divorced woman whom- either he has not even touched or from whom he receives no consideration afo divorce. Marriage in Islam is a contract both religious and social in nature and afer the contract ends nothing remains except consequential benefits. Hefzur Rahman vs Shamsun Nahar Begum and another 4 BLC (AD) 14. E. Guardianship and Custody of Children Appointment of Guardians for person and property-Age of majority-"Minor" means a person-who has not completed the age of eighteen years. See the Majority Act, IX of 1875, section 3, and the Guardians and Wards Act, VIII of 1890, section 4 clause (1). Under the Muslim Law any person who has attained puberty is entitled to act in all matters affecting his or her status or his property. Suit that law has been materially altered by the Majority Act, and the only matters in which a Muslim is now entitled act on attaining the age of sixteen years are (1) marriage, (2) dower and (3) divorce. In all other matters his minority continues until the completion at least of eighteen years. Until then the Court has power to appoint a guardian of his person or property or both under Guardians and Wards Act. Md Sadiq vs S Safoorà PLD 1963 Lah. 534; PLD 1962 Kar. 442; PLD 1952 Lah. 548. Natural Guardian and his powers-In Muslim Law, father, if alive, is the natural and legal guardian of the person and property of his minor child. AIR 1946 Cal. 272; 16 DLR (WP) 1: PLD 1963 (Lah.) 534; 20 DLR (SC) 117. He does not require an order of the Court to support his right to act as their guardian any matter. AIR 1946 Mad 110, PLD 1956 Kar 451; PLD 1956 Lah 484; PLD 1959 Lah 967. But when he makes an application, the Court may treat it as made under section 25 of the Guardian and Wards Act for obtaining the custody of his children. PLD 1952 Pesh 77; PLD 1953 Lah 73: 20 DLR (WP) 45; 2 Cal 554. in 44 AC 433. Application for appointment of guardian-All applications for the appointment of a guardian of the person or property or both of minor are to be under the Guardians and Wards Act, 1890. ai Power of Court to make order as to guardianship-When the Court is satisfied that it is for the welfare of a minor that an order should be made (1) appointing a guardian of his person or property, or both, or (2) declaring a person to be such guardian, the Court may make an order accordingly. [Guardians ana Wards Act, 1890, section 7]. Matters to be considered by Court in appointing guardian (1) in appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which she minor is subject, appears in the circumstances to be for the welfare of the minor. Dr Rashiduddin vs Dr Quamrunnahar 30 DLR 208; Mt Haidri vs Jawad 4li (1934) All. LJ 399. 150 C 149. (.34) AA 722; (.48) AA 198; 22 DLR 548, 1963 AIR (J&K). 32; AIR 1963 Raj 329. (2) In considering what will be for welfare of the minor, the Court shall have regard to the age, sex and religion or the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor, or his property. (3) If the minor is old enough to form an intelligent preference the Court may consider that preference. Right of mother to custody of infant children-The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, Zarabibi vs Abdul Rezzak (1910) 12 Bom. LR 891, 8 IC 618; (1904) 6 Bom. LR 536; (1933) 14 Lah. 770; 147 IC. 123. (.33) AL 969; (1934) All. LJ 399.150 IC. 149. (.34) AA 722; 22 DLR 548; 30 DLR 208, unless she marries a second husband in which case the custody belongs to the father. Ulfat Bibi vs Bafeti (1927) 49 All 773. 102 IC 103 ('27) AA 581; 16 DLR (WP) 1; 20 DLR (SC) I; 30 DLR 208. [Hedaya, 138; Baillie, 435] Right of female relations in default of mother-Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below- (1) mother's mother, how highsoever; (2) father's mother, how highsoever; (3) full sister; (4) uterine sister; (5) [consanguine sister]: (6) full sister's daughter; (7) uterine sister's daughter; (8) [consanguine sister's daughter]: (9) maternal aunt, in like order as sisters; and (10) paternal aunt, also in like order as sisters. Nur Begum vs Mt Begu (1934) 149 IC 972. (.34) AL 274. (1941) 1 Cal. 419, 45 CWN 515 (.42)AC 281; (1942) Kar. 215. (.42) AS 113. Females when disqualified for custody-A female, including the mother. who is otherwise entitled to the custody of a child, loses the right of custody 1) if she marries a person not related to the child within the prohibited degrees e.g., a stranger; Nur Begum vs Mt Begum (1934) 149 IC 972. (.34) AL. 274; (1938) ALJ 982. 173 IC 1003. (.39) AA 15; (52) AM 280; 7 DLR (WP) 9. 22 DLR (SC) 289. 1966 PLD (Azad J & K) 1; 5 DLR 378, but the right revives on the dissolution of the marriage by death or divorce. Fussehun vs Kajo (1884) 10 Cal. 15; (1885) 11 Cal. 574; (.28) AO 220 106 IC 822; 22 DLR (SC) 289. or. 2) if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence, or, 3) if she is leading an immoral life, as where she is a prostitute. Abasi vs Dunne (1878) 1 All, 598; or, 4) if she neglects to take proper care of the child. 1942 Kar 363; (.42) AS 154; 22 DLR (SC) 289; PLD 1960 Lah. 1142; PLD 1965 Kar 416; 17 DLR (SC) 481. Right of father and paternal male relations to custody of boy over seven and of girl who has attained puberty-The father is entitled to the custody of a boy over seven years of age. Idu vs Amiran (1886) 8 All 322; (1914) 41 IA 314 324; 38 Mad. 807. 822, 24 IC 290; 30 DLR 308, and of an unmarried girl who has attained puberty. Legal guardians of property-The following persons are entitled in the order mentioned below to be guardians of the property of a minor. Imambandi vs Mutsaddi (1918) 45. IA 73. 83-84. 45 Cal. 878 892-893, 47 IC 513; (1941) OWN 906. 196 IC 787, (41) ÁO 529, 1963 AP 108, 20 DLR (WP) 254; 20 DLR (WP) 45; 20 DLR (SC) 117. (1) the father; (2) the executor appointed by the father's will; (3) the father's father; (4) the executor appointed by the will of the father's father. [Baillie, 689). Guardian of property appointed by Court-In default of the legal guardians, the duty of appointing a guardian for the protection and preservation of the minor's property falls on the judge as representing the State. Mala Din vs Ahmad Ali (1912) 39 IA 49,55,34 All. 213,13 IC 976,(1918) 45 IA 73,84; 45 Cal, 878, 893; 47 IC 513. De facto guardian-A person may neither be a legal guardian nor a guardian appointed by the Court, but may have voluntarily placed himself in charge of the person and property of a minor. Such a person is called de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor. Imambandi vs. Mutsaddi (1918) 45 IA 73,84,45 Cal. 878 894-895; 47 IC 513; (1932) 59 IA 92, 101, 7 Luck, I, 136 IC 97. (.32) APC 78; (1937) 2 Cal. 137, (.37) AC 284; (1937) All. 195, 166 IC .61. (.36) AA 837; (.51) A Pat 6, (.67) A. Rej 258. Alienation of immovable property by legal guardian-A legal guardian of the property of a minor has no power to sell the immovable property of the minor except in the following cases, namely, (1) where he can obtain double its value; (2) where the minor has no other property and the sale is necessary for his maintenance; (3) where there are debts of the deceased, and no other means of paying them; (4) where there are legacies to be paid and no other means of paying them; (5) where the expenses exceed the income of the property; (6) where the property is falling into decay; and (7) when the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution. Imambandi vs Mutsaddi (1918) 45 IA 73. 91,45 Cal. 878. 47 IC 513: (1896) 20 Вот. 116. 121; (1888) 16 Cal. 627. 16 IA 96; 165 IС 597: Basha vs Muthan 70 Mad. LW 706. (.37) AO 56. Alienation of immovable property by guardian appointed by Court-A guardian of property appointed by the Court under the Guardians and Wards Act, 1890 has no power without the previous permission of the Court, to mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or to lease any part of that property for a term exceeding five years, or for any term extending more than one year beyond the date on which the ward will cease to be a minor. A disposal of immovable property by a guardian in contravention of the foregoing provisions is voidable at the instance of the minor or any other person affected thereby. Solema Bibi vs Hafeez Mahomed (1927) 54 Cal. 587. 104 IC 833. (.27) AC 636. Said-un-nissa vs Rajiya Bibi (1931) 53 All. 428. 130 IC 201. (.31) AA 307; (.55) AN 193. Permission to the guardian to do any of the acts mentioned above must not be granted by the Court except in case of necessity or for an evident advantage to the ward [Guardians and Wards Act, 1890, sections 29, 30, 31]. Alienation of immovable property by de facto guardian-A de facto guardian has no power to transfer any right or interest in the immovable property of the minor. Such a transfer is not merely voidable, but void. Imambandi vs Mutsaddi (1918) 45 IA 73; 45 Cal 878, 47 IC 513: (1912) 39 IA 49. 34 All 213; Agreement by guardian-Neither a guardian nor the manager of a 13 IC 976; (1933) 65 Mad. LJ 548.147 IC 83, (.33) AM 806 813; (.48) AM 37; (47) AS 179; (.54) A. Pat. 6; (1955) Pat. 709, (55) AP 475; (1956) I MLJ 243. guardian's estate is competent to bind the minor or his estate by an agreement for the purchase of immovable property. Such an agreement is void. Mir Sarwarijan "benefit" of the minors lie. Such assurance or agreement cannot have any bearing (1918) 45 IA 73.83; 45 Cal 878 894. 47 IC 513. vs Fakhruddin (1912) 89 IA 1.39 Cal. 232, 131 C 331. VS Section 5-If any agreement or assurance is reached between the nari that cannot debar the court from deciding as to where the "welfare" and a on the welfare of the minors which is to be determined by the court. Naraie Sultana vs Aminul Bar Chowdhury 50 DLR 532. Section 5-Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. Bazlur Rahman Sikder vs Taher Begum Shamima 50 DLR 612. Section 5-The child born during the subsistence of the marriage is a legitimate child and entitled to maintenance till his majority. Jashimuddin (Md) alias Md Jashimuddin vs Dali Begum and another 56 DLR 358. Section 5-The High Court Division rightly found that the plaintiff had not incurred any disqualification and considering the benefit and welfare of the minor sons gave custody of the two sons to the mother, the plaintiff, as the mother is neither unbalanced nor incapable of looking after the welfare of the children. Aminul Bar Chowdhury (Md) vs Nargis Sultana 4 BLC (AD) 208. Illustrations [A, the manager of the estate of a minor, B, agrees to purchase from C immovable property on behalf of B. The agreement is void, and neither B nor C can sue for specific performance of the contract.] Power of guardian appointed by Court to dispose of movable property-A guardian of the property of a minor appointed by the Court is bound to deal with movable property belonging to the minor as carefully as a man of ordinary prudence would deal with it if it were his own [Guardians and Wards Act, 1890, section 27]. Power of de facto guardian to dispose of movable property-A de facto guardian has the power to sell and pledge the goods and chattels of the minor in his charge for the minor's imperative necessities, such as food, clothing, or nursing. Imambandi vs Mutsaddi (1918) 45 IA 73, 86-87, 45 Cal. 878, 895, 896. 41 IC 513. A mother has no power as de facto guardian to enter into any contract whereby a minor would be saddled with any pecuniary liability. Ghulam Ali vs Inayat Ail (1933) 144 IC 68; ('33) AL 95; Konhibl vs Kaliani Amma (1939) 2 MLJ 463. ('39) AM 881. Nor has a brother. Naziruddin vs Kharagnarain (1939) 177 IC 802. (.39) AP 29. Section—3 Section 3 of the Ordinance reads as follows: Ordinance to override other Laws -The provision of this Ordinance shall have effect notwithstanding anything contained in any other law, for the time being in force. Nirmal Kanti Das Vs. Sreemati Biva Rani, 14 BLD (HCD)413 Section—5 Section 5 of the Ordinance reads as follows: Jurisdiction of Family Courts-Subject to the provisions of the Muslim Family Laws Ordinance, 1961 (VIII of 1961) , a Family Court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to, or arising out of, all or any of the following matters, namely: a. dissolution of marriage; b. restitution of conjugal rights; c. dower; d. maintenance e. guardianship and custody of children. From the expression “other laws” used in Section 3 of the Ordinance, it appears that the Family Courts Ordinance, 1985, controls the, Muslim Family Laws Ordinance, 1961, and not vice versa. Any person professing any faith has a right to bring a suit for the pur. poses mentioned in Section 5 of the Family Courts Ordinance. A Hindu wife is therefore entitled to bring a suit for maintenance against her husband under the Family Courts 0rdinance. Nirmal Kanti Das Vs. Sreemati Bira Ranig, 14 BLD (HCD) 413. Section—5 The Family Courts have jurisdiction to entertain, try and dispose of any suit relating to the matters mentioned in clauses (a) to (e) of Section 5 of the Family Courts Ordinance only between litigants who are Muslims by faith. Krishna Pada Talukder alias Kajal Vs. Geetasree Talukder alias Baby, 14 BLD (HCD) 415. Ref: Attorney General Vs. Prince Ernest, 1957 A.C. 436—Cited. Section—5 Limitation Act, 1908, Article—120 The Limitation Act does not specifically provide for any particular period of limitation for filing suits by a Muslim wife for arrears of maintenance. The Appellate Division held that residuary Article 120 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrued in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule, will be applicable to a suit for maintenance by a Muslim wife under the Family Courts Ordinance 1985. Jamila Khatun Vs. Rustom Ali, 16 BLD (AD) 61. Section—5 Welfare of Child Plaintiff’s suit was decreed upto the Appellate Division observing that the plaintiff was entitled to take the twin sons in her custody. It is on record that the plaintiff and the defendant are highly educated persons and they are responsible government officers. From the judgment of the Appellate Division it appears that the defendant-petitioner has got married again and as such the welfare of the twin sons will not be protected in the hands of the step-mother. Amirul Bor Chowdhury Vs. Nargis Sultana, 19 BLD (HCD) 213. Ref: AIR 1959 (Mysore) 150; 17 DLR (WP) 119; 38 DLR(AD)106—Cited. Section—5 Custody of minor children The Family Court has the jurisdiction to decide the question of custody of the minor children after determining their welfare, irrespective of any agreement or any assurance reached between the contending parties. The paramount consideration before the Court in deciding the question of custody of the minor children is the ‘welfare and benefit’ of the minors. Nargis Sultana Vs Md. Aminul Bor, 18 BLD (HCD) 343. Ref: D. F. Mulla’s “Principles of Mahomedam law”; 42 DLR (AD) 234; 46 DLR (AD) 46; 46DLR(AD)148; 46 DLR (HCD) 307; A.I.R. 1982(SC)121; (1893) Chancery, 143; (1946) 9 Sud Park U.S.R.R. 4; A.I.R. 1928(Calcutta)600; 38 DLR (AD) 106—Cited. Section—5 Maintenance for Child Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. If the father objects to the custody of the children and wants to assert his own legal right, the proper course for the father would be apply for their custody, but so long as the custody of the children remains with the mother, he cannot on any plea refuse to pay maintenance for the children. Baziur Rahman Sikder Vs Mrs. Tahera Begum, 18 BLD (HCD) 519. Ref: A.I.R.(29)1942 Madrass 705; PLD 1961 (W.P.)Lahore733—Cited. Section—5 Jurisdiction of the Family Court to award maintenance Under section 5 of the Family Courts Ordinance, 1985 not only the wife can file a suit in a Family Court for her own maintenance but also she can claim maintenance for her child. Children in easy circumstances under Mohammadan law are bound to maintain their poor parents, although the latter may be able to earn something for themselves. These poor parents may also file suits in the Family Court for their maintenance from their opulent children. Similarly, poor or disabled relatives, even servants of the wife, can maintain a suit for maintenance under the Ordinance under circumstances enjoined by Mohammadan Law. Jamila Khatun Vs. Rustom Ali, 16 BLD (AD) 61. Ref: Mulla’s Principles of Mohammadan Law (18th Edition); Abdul Futte Moulvie Vs. Zabunnessa Khatun, (1881) I.L.R. 6 (Cal) 631; Mst. Ghulam Fatima Vs. Sheikh Muhammad Bashir, PLD 1958 (WP) (Lahore) 596; Baillie’s Digest at page 443; Hamilton’s Translation of the Hedaya, at page 142; Sardar Muhammad Vs. Most. Nasima Bibi and others. I9DLR (WP) 50: PLD 1966 (La- bore) 703; Sirajul Islam Vs. Helana Begum and others, 48 DLR (HCD) 48; Muhammad Nawaz Vs.Mst. Khurshid Begum, PLD 1972 (SC) 302, at PP. 304-305; Ghulam Nabi Vs. Muhammad Asghar, PLD 1991 (SC) 443; Mohammadan Law, Volume 11(5th Edition) at page 404 by Syed Ameer Ali, Kozhikoti Khadir Palliveetil Muhamed Haji Vs. Moideen Veettil Kalimabi, 4 I.L.R. ((Madras) 21 1; Tamizul Huq Vs. Shamsul Huq, 43DLR (AD) 34; Adnan Afzal Vs. Sher Afzal, PLD 1969(SC) 187; Hamilton’s translation of the Hedaya, Volume 1, page 146; Volume II of Syed Ameer Ali’s Muhammadan Law, 5th Edition, page 427—Cited. Sections—5 and 24 The Family Courts Ordinance, 1985 applies to all citizens of Bangladesh irrespective of their religious faith. If Section 24 is read with section 5 of the Ordinance it will be evident that not only the Muslims but also the members of other communities professing other religion come within the ambit of the Ordinance and they are entitled to avail themselves of the forum of the Family Court for speedy settlement of disputes regarding maintenance, guardianship, custody of the children etc. and the Family Court has the exclusive jurisdiction to try these matters. Pachan Rissi Das Vs. Khuku Rani Dasi, 17 BLD (HCD) 563. Section—5(b) Restitution of Conjugal Right Mohammedan Law Section—281 Suit for restitution of Conjugal rights Section 5(b) of the Family Court Ordinance, 1985 and section 281 of the Mohammadan Law provides that where a wife without lawful cause ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights. The language used in both the sections of law is one and the same. The view taken by a Single Judge of the High Court Division that “the law of restitution of conjugal rights is void” while exercising power under section 115 of the Code, cannot be endorsed to strike down a piece of legislation practiced over a long period. The legitimacy or otherwise of a valid piece of legislation can only be decided in writ jurisdiction under Article 102 of the Constitution. Hosna Jahan (Munna) Vs. Md. Shajahan (Shaju) and ors, 18 BLD (HCD) 321. Section—6(1)(a)(b) Institution of suit Every suit under the Ordinance shall be instituted by the presentation of a plaint to the Family Court within the local limits of whose jurisdiction the cause of action has wholly or partly arisen or the parties reside or last resided together. Provided that in a suit for dissolution of marriage, dower or maintenance, the Court within the local limits of whose jurisdiction the wife ordinarily resides, shall also have jurisdiction to try such a suit. Mossammat Jesmin Akhter and others Vs A S M Moniruzzaman , 21 BLD (HCD) 160. Section—6(4)(g) Code of Civil Procedure, 1908, Order VII Rule 7 Per A.T.M. Afzal, CJ: The law requires that the relief must be specifically claimed either simply or in the alternative. It is true that general or other relief which the Court may think just may be granted although not specifically asked for. But the essential conditions are that the averments in the plaint must justify such relief and the defendant must get an opportunity to contest such relief. In the name of granting general or other relief the court cannot and would not mount any surprise on the defendant make liable for something which does not arise out of the plaint and as such he had no occasion to answer the same. This is merely an extension of the principle of natural justice. The defendant was admittedly absent at the hearing of the revision before the High Court Division. The worst that could happen to him was that the Rule could have been discharged for default or on merit and the appellate judgment and decree would have been maintained in that case. But if the learned Judges entertained some bright and innovative ideas about some verses of the Quran hitherto not known for saddling the defendant with more liability than the plaintiff had claimed and received, then was it not necessary and lot elementary that the defendant ought to have been put on notice again? It was like enhancing the sentence of an accused in exercise of revisional jurisdiction in a criminal case. Could any tribunal do it without putting him on prior notice? This is exactly what has been done by the High Court Division which to say the least, was unfortunate. Md. Hefzur Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27. Section—6(4)(g) and 17 Code of Civil Procedure, 1908, Section—115 Per Mustafa Kamal, J: Section 6(4)(g) of the Ordinance provides that the plaint shall contain inter alia the relief which the plaintiff claims. An appeal lies under section 17 of the Ordinance to the Court of District Judge. The High Court Division interferes in revision under section 115 of the Code of Civil Procedure when the lower appellate Court appears to have committed an error of law resulting in an error in the decision occasioning failure of justice. In such a case the High Court Division may make such order in the case as it thinks fit. The High Court Division did not say in the impugned judgment that the lower appellate Court committed any error of law on the point of maintenance. Giving the plaintiffs a substantive relief beyond the frame of the suit is beyond the jurisdiction of the revisional court and is a sad case of judicial excess defying all judicial norms and trampling the judicial procedure. Md. Hefzur Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27. Section—16(3) In the execution proceeding whether the subsequent execution against the judgment- debtor is maintainable or not? From the materials on record it was found that on the own seeking of the petitioner 40 installments were granted but the petitioner did not pay a single installment. The execution was started for one installment only in respect of Tk. 13,000/- and odd whereas the total decree was for Tk. three lac and odd and as such the entire decretal amount remained unpaid. As a matter of fact, the execution was for one installment and there is no legal bar to proceeding with the executing under section 16(3) of the Ordinance for the unpaid amount. The entire amount having remained unpaid. there is no legal bar to proceeding with the subsequent execution. Md. Serajul Islam Vs Maksuda Akhter (Navy) Advocate, 20 BLD (AD) 84. Section—16(3B) In view of the provision of section 16(3B) of the Ordinance, a fresh and separate cause of action will arise for failure to pay money of each and every installment for the purpose of sending the judgment-debtor to imprisonment for his failure to pay the money under each installment. Maksuda Aktar Vs Md Serajul Islam, 19 BLD (HCD) 466. Ref: 1981 BCR 212; Karson Ranee Chawda, AIR 1958’99—Cited. Section—16(5) Enforcement of decrees Under the general law the trial Court may allow payment of the installments even after the passing of the decree under certain circumstances. Under sub-section (5) of Section 16 of the Ordinance it is permissible for the Court to allow installments even after the passing of the decree. The difference between the general provisions and those provided in section 16(5) of the Ordinance is that whereas under the former the power is hedged by certain conditions including one of limitation. But under sub-section (5) of section 16 of the Ordinance there is no such condition except that the power should be exercised by way of proper judicial discretion. This power is wider under subsection (5) of section 16 of the Ordinance and it may be exercised either on the application of a party or even suo motu so long as the decree remains unsatisfied. A Family Court therefore has the power to allow installments as it deems fit even after the passing of the decree. Reshma Sultana Vs Khaez Ahmed Mojumder, 17 BLD (AD) 72. Ref: A.I.R. 1921 (Patna) 340; A.I.R. 1932 Allahabad 273 (FB), A.I.R. 1943 Nagpur 340 (F.B); A.I.R. 1985 (Andhra Pradesh) 49;— Cited. Section—20 Code of Civil Procedure, 1908, Order XLI Rule 27 Section 20 of the Ordinance is a bar to the application of the Civil Procedure Code in a Family Court proceeding with the exception of sections 10 and 11 under the Family Courts Ordinance. The lower appellate Court cannot take evidence under Order XLI Rule 27 of the Code as the provisions of appeal in the Family Courts Ordinance do not provide for taking of evidence. Family Courts Ordinance being a special law must be applied strictly. The appellate Court cannot also remand the case to the trial Court as the Ordinance does not provide for any such provision. Saleha Begum Vs Dilruba Begum, 21 BLD (HCD) 422. Section—24 Guardians and Wards Act, 1890, Sections—12 and 13 Since the procedure under Order XLI Rule 27 is a bar under section 20 of the Ordinance in a Family Court proceeding the only recourse left to the lower appellate Court is to fall upon section 24 of the Ordinance to follow the procedure laid down in Guardians Wards Act, while deciding the question of guardianship and custody of a minor. Saleha Begum Vs Dilruba Be gum, 21 BLD (HCD) 422. Ref: Azad Alam Vs. Zinnat Khanam, 1 BLC(AD)24; Yusuf Ali Mamoonji Vs. Alibhoy, AIR 1925 Lahore 567 2 BLT31; 14 BLD 291—Cited. Section 3—The Family Appellate Court cannot exercise power in sending the suit back on remand to the Family Court for disposal and it can only decide the appeal keeping its authority within the four walls of the Ordinance itself. Atiqur Rahman vs Ainunnahar 52 DLR 453. Sections 3 and 5—Plaintiffs suit for enhanced maintenance for her daughter under the Ordinance upon fresh cause of action is maintainable notwithstanding the earlier order of the Magistrate in exercise of jurisdiction under section 488 CrPC. Kowsar Chowdhury vs Latifa Sultana 54 DLR 175. Sections 3, 5 & 27—Order for maintenance of wife and son—purpose of the Family Courts Ordinance is to provide for speedy disposal of family matters by the same forum. There will be anomaly and multiplicity of proceedings if, in spite of the establishment of Family Courts, the Magistrate continues to entertain cases for maintenance. Provisions made in the Family Courts Ordinance have ousted the jurisdiction of the Magistrates to entertain application for maintenance which is a Family Court matter. Md Abdul Khaleque vs Selina Begum, 42 DLR 450. Sections 3, 5 & 4—Family Courts Ordinance applies to all citizens irrespective of religion. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47. Section 4—The Family Courts Ordinance has not taken away any personal right of any litigant of any faith. It has just provided the forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47. Section 5—A person professing any faith has got every right to bring suit for the purpose as contained in this section—a Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance. Nirmal Kanti Das vs Sreemati Biva Rani 47 DLR 514. Section 5—A person professing any faith has got every right to bring suit for the purpose as contained in this section—a Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance. Nirmal Kanti Das vs Biva Rani 47 DLR 514. Section 5—After the coming into force of the Family Courts Ordinance the Criminal Court’s jurisdiction has been ousted in respect of awarding maintenance except in case of pending proceedings. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47. Section 5—Under the Family Courts Ordinance not only the wife is permitted to file a suit in the Family Court for her maintenance—she can also claim maintenance of her child in the same suit. It was not necessary for the child to file a suit for maintenance himself or to become a coplaintiff with his mother in suit. Saleha Begum vs Kamal Hossain 50 DLR 180. Section 5—If any agreement or assurance is reached between the parties that cannot debar the Court from deciding as to where the “welfare” and the “benefit” of the minors lie. Such assurance or agreement cannot have any bearing on the welfare of the minors which is to be determined by the Court. Nargis Sultana vs Aminul Bor Chowdhury 50 DLR 532. Section 5-Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. Bazlur Rahman Sikder vs Taher Begum Shamima 50 DLR 612. Section 5—ln view of the advance by way of ijtihad made in the right directions within the bounds of Sunni Law, the enunciation on past maintenance made in 1964 by the Lahore High Court being affirmed twice by the Pakistan Supreme Court in this respect should not be overlooked or discarded. The High Court Division was therefore wrong in denying past maintenance to the appellant on the ground of lack of prior agreement. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5—Section 5 of the Ordinance of 1985 only means that if there are provisions in the Ordinance which are different from or are in conflict with the provisions of any other law then the provisions of the said Ordinance will prevail. Section 5 does not debar the application of Limitation Act to suit filed under the Ordinance of 1985. The fact that the Ordinance of 1985 speaks of “Suit”, “plaint”, “Written statement”, “decree” etc. clearly attracts the Limitation Act under section 29(2) thereof. Jamila Khatun vs Ruslom Ali 48 DLR (AD) 110. Section 5—Residuary Article 102 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5—Under section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all the six subjects mentioned in section 5 relate to suits exclusively between husband and wife. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5—Children in easy circumstances under Mohammadan Law are bound to maintain their poor parents, although the latter may be able to earn something for themselves. These poor parents may also file a suit in Family Court for maintenance from their opulent children. Similarly, poor or disabled relatives, even servants of the wife can maintain a suit for maintenance under the Ordinance of 1985 under circumstances enjoined by Mohammadan Law. Jam ha Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5—Family Court has got every jurisdiction to decide as to whether the ‘kabinnama’ in question is a genuine and valid document or not and whether any marriage between the petitioner and opposite party was ever solemnized or not before it decides to grant any decree for dower and/or maintenance. Shafiqul Huq vs Mina Begum 54 DLR 481. Section 5—The child born during the subsistence of the marriage is a legitimate child and entitled to maintenance till his majority. Jashimuddin (Md) alias Md Jashimuddin vs Dali Begum 56 DLR 358. Sections 5 & 23—Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as enumerated in sçction 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47. Sections 5 & 23—Provisions of this Ordinance are applicable not only to the Muslim community but also to other communities constituting the populace of Bangladesh. Meher Negar vs Mojibur Rahman 47 DLR 18. Section-5 (a) Family Courts have jurisdiction to entertaintiy and dispose of any suit relating to the matters in clauses (a) to (e) section 5 of the Family Courts Ordinance only between the litigants who are Muslims by the faith. Krishnapada Talukder Vs Geetasree Alias Baby 2BLT (HCD)-208 (b) The preamble of a statute is not ordinarily on independent enactment able to confer any right or to restrict or widen the enacting part which is clear and unambiguous. Even the preamble is to be disregarded when there is conflict between section and preamble and in that case express provisions of the section are to be given full effect. Krishnapada Talukder Vs Geetasree Alias Baby 2BLT (HCD)-208 Section-5 Family Courts Ordinance applies to all citizens irrespective of religion — “Subject to” has not created any embargo in the jurisdiction of the Family Courts in respect of cases and suits filed by citizens professing religion other than Islam. But while deciding the cases of the subjects enumerated in section 5 it is clear that Family Courts will follow the personal laws of those subjects. Pachan Rishi Das Vs. Khulai Rani Dasi 5BLT (HCD)-174 Section-5 Whether the Family Court have jurisdiction to entertain the suit and to decide the question of validity of the marriage between the parties which was denied by the defendant Family Court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating or arising out of restitution of conjugal right, dower, maintenance etc. which would obviously include the determination of the validity of a marriage as that is related to an inter-connected with the question of determination of dower, maintenance etc. Any other interpretation will be simply preposterous. Md. Chan Mia Vs. Rupnahar 6BLT (HCD)-92 Section-5 Section-5 The appellate court below hold that the plaintiff got five bighas of land as dower and thereafter, the money which was given to the defendant No.1 by selling five bighas of land was money loan by the wife to the husband which cannot be treated as dower — the family court cannot adjudicate upon the dispute. Held: The court of appeal below erred law in holding that the money given by the plaintiff by selling 5 bighas of land to the defendant No.1 was not dower and that the said money was loan. The court of appeal below in the premises, has committed error of law in holding that the said dispute cannot be adjudicated upon by the family court. I am of the view that the family Court has rightly directed the defendant No.1 to give 5 bighas of land as dower. Most. Rowshan Ara Begum Chowdhury Vs. Tahera Noor Jahan & Ors. 10 BLT(HCD)-307 Section-5 read with Specific Relief Act, 1877 [I of 1877] Section-39 On 12.10.2000 opposite party No.1 instituted the family suit before the Family Court for dower and maintenance. The petitioner has already appeared and filed a written statement denying his marriage with her. He has got every opportunity to challenge the ‘Kabinnama’ and the solemnization of the marriage on the very same grounds on which he on 22.10.2000 filed Title suit No.296 of 2000 before a Subordinate Judge. Family Court has got every jurisdiction to decide as to whether the ‘Kabinnama’ in question is a genuine and valid document or not and whether any marriage between the petitioner and Opposite Party No.1 was ever solemnized or not before it decides to grant any decree for dower and /or maintenance. In such a suit for a decree for dower and/or maintenance, no declaration in respect of the ‘Kabinnama’ or cancellation of the ‘Kabinnama’ is at all necessary. Family Court therefore cannot be expected to wait for the final decision of a title suit on like issues as nobody can surely say when such title suit would find the end of the tunnel. Moreover, it would be acting to frustrate the very purpose of the Ordinance. Md. Shafiqul Haque Vs. Mina Begum 10 BLT (HCD)-185 Section- 17(1)(5) Whether a decree will be drawn up by the Family Court after the pronouncement of the judgement. The formal expression of a decision of a Civil Court is an order. The word ‘Order’ occurring in sub-sections 1 and 5 of section 17 may be said to include any ‘decision’ rendered by a court on a question between the parties of a proceeding before the court. The “Decision” may be both interlocutory and final. The decision rendered by the Family Court is final decision/judgement setting the controversy and determining the rights of the pareties in the suit on consideration of the facts, issues and legal aspect and the same is not an interlocutory order-a decree will be drawn up by the Family Court after the pronouncement of the judgement. Ms. Farhat Rahman Vs. Roomee Tarek Moudud 8BLT(HCD)-108 Section-5 (D) The Muslim Family Laws Ordinance, 1961 Section-9, Read with The Code of Criminal Procedure, 1898 Section-488 Past maintenance — A wife can claim past maintenance for herself and for her children for only 6 years prior to the filing of the suit. From a reading of the entire ordinance of 1985 it appears that the provisions thereof are intended to provide for the establishment of Family Courts and for matters connected therewith and are not intended to make provisions for modification or amendment of Mohammedan law or any other substantive law. The Ordinance is indeed procedural in nature. Jamila Khatoon Vs. Rastom Ali 4BLT(AD)97 Under section 5 of Ordinance of 1985 the wife can claim past maintenance for the child if she has been supporting the child in the same household without any contribution from the father. But if she does not claim separate maintenance for the child, the court will consider the overall needs, keeping in view the fact that she has been supporting a child in the same household. In either case, the claim is subject to Article 120 of the Limitation Act. Jamila Khatoon Vs. Rastom Ali 4BLT (AD)97 Section-20 The affidavit of divorce is a public document and it requires no formal proof the Appellate Court having the power of the original Court has rightly admitted the said instrument of divorce and legally marked the same as Ext. A. Sirajul Islam Vs. Helena Begum & Ors. 3BLT (HCD)-40 Section-21 Attorney in the instant case the defendant petitioner—the defendant petitioner is the husband of the plaintiff-opposite-party and he is male and not a pardahnashin lady and he cannot be represented by an authorised agent, here his brother in whose favour the Power of Attorney has been made by him [defendant]. Md. Atiqur Rahaman Vs. Ainunnahar 7BLT (HCD)-241 Financial Institution Act, 1993 Section-25(3) We are of the opinion that the embargo on banks, insurance companies and other financial institutions to nominate its directors on the Board of a financial institution is based on a reasonable classification. It appears to us to be obvious that the legislative policy is to exclude the same set of persons to manage, control, regulate and monopolize the policy making functions of capital generating financial institutions. A textile manufacturing company is generating goods and it may not be immoral from the point of view of financial policy to allow the directors of such a company to be represented on the Board of financial institution in which the textile manufacturing company may have a shareholding interest. But it appears to be the police of the legislature that directors of capital generating institutions should not be allowed to flock together in a financial institution to control and monopolize the capital market. City Bank Ltd. Vs. Bangladesh Bank & Ors 8BLT (AD)-20 Section-25(3) Section 25(3) does not on terms make any distinction between directors who represent their own shareholding individually and nominee directors who represent their companies shareholdings. It applies to all, whether they are individuals or nominees of a bank, insurance or financial institution. Phoenix Leasing Ltd. & Ors. Vs. Bangladesh Bank & Ors 8BLT (AD)-117 Section-25(3) and 48 Withdrawal of exemption by Bangladesh Banks Notification dated 14.12.1996 is prospective and not retrospective as contended by the petitioners learned Counsel This interpretation of the impugned notification dated 14.12.1996 is not acceptable on the face of it. Section 25(3) of the said Act is a barring provision making certain persons ineligible for being appointed as directors of a financial institution. Until there is an exercise of power of exemption under section 48, the bar remains as a permanent provision in the said Act. When an exemption is given the bar under section 25(3) is relaxed: but when the exemption is withdrawn the legal consequence is he revival of the permanent bar under section 25(30, which will affect the existing nominee directors including petitioner Nos.2-5 The question of prospectively and retrospectively does not arise in these circumstances. It is a case of certain section of an Act remaining in abeyance as if in a state of hibernation because of an exemption granted and the revival of it as soon as the exemption is withdrawn. Phoenix Leasing Ltd. & Ors. Vs. Bangladesh Bank & Ors 8BLT (AD)-117 Fire Insurance Policy Condition Nos 3, 13 & 19 Read with word “Action” (a) The plaintiff-respondent established a homeopathic laboratory and a fire insurance policy was taken from defendant No. 1 (Sadharan Bima Corporation). covering the risk of fire due to fire which arose out of short circuit of electricity the laboratory of the plaintiff was turn to ashes. Sadharan Bima Corporation Vs Sanjit Kumar Das 2BLT (HCD)-101 (b) There was no electricity connection in the room where the spirits were stored but in other rooms the electricity connection for lighting the rooms was there — since the plaintiffs house is adjacent to the laboratory and he is the owner of both laboratory and house only for lighting purpose of the room of the laboratory he extended the electricity to his laboratory room from his house — no Misdescription about electricity connection. Sadharan. Bima Corporation Vs Sanjib Kumar Das 2BLT (HCD)-101 (c) After filling up and submission of the proposal form for fire insurance the officers of the defendant No.! (Sadharan Bima Corporation) inspected and visited the area and the laboratory. The officers of the defendant No.1 had given a favourable report and on the basis of the report of their officers, the defendant No. I became satisfied and then issued fire insurance policy to the plaintiff — now the defendant No. 1 cannot take a different view only to avoid the payment of compensation to the plaintiff. Sadharan Bima Corporation Vs Sanjit Kumar Das 2BLT (HCD)-101 (d) The condition No. 3 of the insurance Policy Ext. Uma which clearly shows that the properties of S. B. Homeo Laboratory situated at 20/46, Zilla Parishad Super Market, Court Road, Chittagong, was insured with the Green Delta Insurance Company. But the present property of S. B. Homeopathic Laboratory is situated of the village Kulkurmai, Police Station Rangunia — it appears that condition No. 3 has not been in any way violated by the plaintiff. Sadharan Bima Corporation Vs Sanjib Kumar Das 2BLT (HCD)-101 (e) The condition No. 19 of the Insurance Policy—the claim must be a subject matter of any legal proceeding or arbitration within 12 months from the date of damage — the word “action” in condition No. 19 will not only mean a suit or other legal proceeding in court for recovery of the damage, but it will also mean and include any legal action pending before the authority who is under legal obligation to compensate the damage under the Insurance Policy condition Nos 13 and 19 are not contradictory or contrary, rather they are supplementary and complimentary to each other in order to give an effective relief to the sufferer and the aggrieved person — the present case is fully covered by condition No. 13 of the Insurance Policy, as the “action” contemplated in condition No. 19 will mean and include the action which was legally pending before the insurer for decision as to whether and insurer would compensate the loss and damage of the plaintiff — the claim of the plaintiff cannot be time barred in any manner — appeal dismissed. Sadharan Bima Corporation Vs Sanjib Kumar Das 2BLT (HCD)-101 Fundamental Rules Rule-18 The petitioner not being on foreign service his service conditions are controlled by Rule-18. Admittedly the petitioner was absent from service for more than 11 years and Rule- 18 provides that a Government servant ceases to be a Government employee after 5 years continuous absence from duty. From the words employed in Rule 18 of the Fundamental Rules it seems to us that for taking action as has been taken in the instant case no prior show cause necessary as Rule- 18 take effect automatically on expiry of 5years continuous absence from service by a Government employee, other than those who are on deputation on foreign service. Sarder Borhan Uddin Vs. Govt. of Bangladesh & Ors 8BLT(AD)-40. Sections 5 & 23—Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate. It can safely be presumed that our law makers while promulgating Ordinance No.XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word ‘suit’ was specifically and unambiguously used in section 5 instead of the word ‘matters’ which has been used in the Pakistan law. The term ‘matters’ has wider meaning than the term suit’ and the former term definitely includes civil suits as well as criminal or quasi criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18. Sections 5 & 24—Sections 5 and 24 of the Family Courts Ordinance are also applicable to the members of other than the Muslim community and they are entitled to avail settlement of disputes regarding maintenance, etc and the Family Court has got the exclusive jurisdiction to try those matters. Ganesh Chandra Das vs Arati Acharjya 54 DLR 348. Section 6(2)—A Family Court like any other Courts has got inherent jurisdiction to decide whether it has got jurisdiction to entertain a suit. Krishnapada Talukdar vs Geetashree Talukdar 47 DLR 591. Section 16(4) & (5)—Call it the executing Court or the trial Court, it is nonetheless the Family Court which passed the decree and its power to allow instalments even after passing of the decree is undoubted. Resima Sultana vs Khaez Ahmed Mojumder 49 DLR (AD) 57. Section 17—The appeal before the Court of the District Judge against an interlocutory order passed by the Family Court was not maintainable. Younus Mia vs Abida Sultana Chhanda 47 DLR 331. Section 17—The order in its widest sense may be said to include any decision rendered by a court on question between the parties of a proceeding before the court and the same can be construed or read either final or interlocutory and both are appealable. Atiqur Rahman vs Ainunnahar 52 DLR 453. Section 17—The order under challenge is an interlocutory order and the same is appealable— this civil revision petition is not at all maintainable. Firojul Islam vs Zahanara Akter 52 DLR 107. Section 17—The mere fact of first plaintiffs not having preferred an appeal or a cross-appeal or cross-objection would not by itself be sufficient to justify refusal to exercise the power contained in rule 33 of Order 41 of the Code. Hasibur Rahman vs Shakila Begum 53 DLR 152. Section 17(5)—The Family Court passed the impugned order rescheduling the mode of payment of the decretal dues by the petitioner in exercise of his judicial discretion. Alamgir vs Habea Begum 52 DLR 157. Section 17(7)—Under section 17(7) of the Ordinance a Subordinate Judge can exercise the appellate power in such family matters only after an appeal is transferred to him by the District Judge for disposal. He has got no like power of a District Judge to take cognizance of an appeal by way of admission. Shafiqul Huq vs Mina Begum 54 DLR 481. Section 20—When section 20 of the Ordinance says that provisions of the Code “shall not apply to proceedings before the Family Courts” it means that those provisions of the Code shall not apply which are in the Ordinance as prescribed modes for conducting judicial business by the Family Courts. Younus Mia vs Abida Sultana Chhanda 47 DLR 331. Section 20—Section 20 of the Family Courts Ordinance is a bar to the application of the Civil Procedure Code in Family Court proceeding with the exception of sections 10 and 11 under the Family Courts Ordinance. The lower appellate Court cannot take evidence as the provisions of appeal in the Family Courts Ordinance does not provide for taking of evidence. It being special law must be applied strictly. The appellate Court cannot also remand the case to the trial Court as the Family Court Ordinance does not provide for any such provision. Saleha Begum vs Dilruba Begum 53 DLR 346. Section 20(1)—Court can take into account subsequent event necessitating amendment by addition of new relief that may be allowed to do complete justice. Nazrul Islam Majumder vs Tahamina Akhtar 47 DLR 235. Sections 23 & 5—Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as enumerated in section 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47. Sections 23 & 5—Provisions of this Ordinance are applicable not only to the Muslim community but also to other communities constituting the populace of Bangladesh. Meher Negar vs Mojibur Rahman 47 DLR 18. Sections 23 & 5—Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate. It can safely be presumed that our law makers while promulgating Ordinance No.XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word ‘suit’ was specifically and unambiguously used in section 5 instead of the word ‘matters’ which has been used in the Pakistan law. The term ‘matters’ has wider meaning than the term ‘suit’ and the former term definitely includes civil suits as well as criminal or quasi criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the Family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18. Section 24—Since the procedure under Order XLI rule 27 is a bar under section 20 of the Family Courts Ordinance in a Family Court proceeding only recourse left to the lower Appellate Court is to fall upon section 24 of the Ordinance to follow the procedure laid down in Guardians and Wards Act while deciding the question of guardianship and custody of a minor. Saleha Begum vs Dilruba Begum 53 DLR 346. Section—3 Section 3 of the Ordinance reads as follows: Ordinance to override other Laws -The provision of this Ordinance shall have effect notwithstanding anything contained in any other law, for the time being in force. Nirmal Kanti Das Vs. Sreemati Biva Rani, 14 BLD (HCD)413 Section—5 Section 5 of the Ordinance reads as follows: Jurisdiction of Family Courts-Subject to the provisions of the Muslim Family Laws Ordinance, 1961 (VIII of 1961) , a Family Court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to, or arising out of, all or any of the following matters, namely: a. dissolution of marriage; b. restitution of conjugal rights; c. dower; d. maintenance e. guardianship and custody of children. From the expression “other laws” used in Section 3 of the Ordinance, it appears that the Family Courts Ordinance, 1985, controls the, Muslim Family Laws Ordinance, 1961, and not vice versa. Any person professing any faith has a right to bring a suit for the pur. poses mentioned in Section 5 of the Family Courts Ordinance. A Hindu wife is therefore entitled to bring a suit for maintenance against her husband under the Family Courts 0rdinance. Nirmal Kanti Das Vs. Sreemati Bira Ranig, 14 BLD (HCD) 413. Section—5 The Family Courts have jurisdiction to entertain, try and dispose of any suit relating to the matters mentioned in clauses (a) to (e) of Section 5 of the Family Courts Ordinance only between litigants who are Muslims by faith. Krishna Pada Talukder alias Kajal Vs. Geetasree Talukder alias Baby, 14 BLD (HCD) 415. Ref: Attorney General Vs. Prince Ernest, 1957 A.C. 436—Cited. Section—5 Limitation Act, 1908, Article—120 The Limitation Act does not specifically provide for any particular period of limitation for filing suits by a Muslim wife for arrears of maintenance. The Appellate Division held that residuary Article 120 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrued in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule, will be applicable to a suit for maintenance by a Muslim wife under the Family Courts Ordinance 1985. Jamila Khatun Vs. Rustom Ali, 16 BLD (AD) 61. Section—5 Welfare of Child Plaintiff’s suit was decreed upto the Appellate Division observing that the plaintiff was entitled to take the twin sons in her custody. It is on record that the plaintiff and the defendant are highly educated persons and they are responsible government officers. From the judgment of the Appellate Division it appears that the defendant-petitioner has got married again and as such the welfare of the twin sons will not be protected in the hands of the step-mother. Amirul Bor Chowdhury Vs. Nargis Sultana, 19 BLD (HCD) 213. Ref: AIR 1959 (Mysore) 150; 17 DLR (WP) 119; 38 DLR(AD)106—Cited. Section—5 Custody of minor children The Family Court has the jurisdiction to decide the question of custody of the minor children after determining their welfare, irrespective of any agreement or any assurance reached between the contending parties. The paramount consideration before the Court in deciding the question of custody of the minor children is the ‘welfare and benefit’ of the minors. Nargis Sultana Vs Md. Aminul Bor, 18 BLD (HCD) 343. Ref: D. F. Mulla’s “Principles of Mahomedam law”; 42 DLR (AD) 234; 46 DLR (AD) 46; 46DLR(AD)148; 46 DLR (HCD) 307; A.I.R. 1982(SC)121; (1893) Chancery, 143; (1946) 9 Sud Park U.S.R.R. 4; A.I.R. 1928(Calcutta)600; 38 DLR (AD) 106—Cited. Section—5 Maintenance for Child Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. If the father objects to the custody of the children and wants to assert his own legal right, the proper course for the father would be apply for their custody, but so long as the custody of the children remains with the mother, he cannot on any plea refuse to pay maintenance for the children. Baziur Rahman Sikder Vs Mrs. Tahera Begum, 18 BLD (HCD) 519. Ref: A.I.R.(29)1942 Madrass 705; PLD 1961 (W.P.)Lahore733—Cited. Section—5 Jurisdiction of the Family Court to award maintenance Under section 5 of the Family Courts Ordinance, 1985 not only the wife can file a suit in a Family Court for her own maintenance but also she can claim maintenance for her child. Children in easy circumstances under Mohammadan law are bound to maintain their poor parents, although the latter may be able to earn something for themselves. These poor parents may also file suits in the Family Court for their maintenance from their opulent children. Similarly, poor or disabled relatives, even servants of the wife, can maintain a suit for maintenance under the Ordinance under circumstances enjoined by Mohammadan Law. Jamila Khatun Vs. Rustom Ali, 16 BLD (AD) 61. Ref: Mulla’s Principles of Mohammadan Law (18th Edition); Abdul Futte Moulvie Vs. Zabunnessa Khatun, (1881) I.L.R. 6 (Cal) 631; Mst. Ghulam Fatima Vs. Sheikh Muhammad Bashir, PLD 1958 (WP) (Lahore) 596; Baillie’s Digest at page 443; Hamilton’s Translation of the Hedaya, at page 142; Sardar Muhammad Vs. Most. Nasima Bibi and others. I9DLR (WP) 50: PLD 1966 (La- bore) 703; Sirajul Islam Vs. Helana Begum and others, 48 DLR (HCD) 48; Muhammad Nawaz Vs.Mst. Khurshid Begum, PLD 1972 (SC) 302, at PP. 304-305; Ghulam Nabi Vs. Muhammad Asghar, PLD 1991 (SC) 443; Mohammadan Law, Volume 11(5th Edition) at page 404 by Syed Ameer Ali, Kozhikoti Khadir Palliveetil Muhamed Haji Vs. Moideen Veettil Kalimabi, 4 I.L.R. ((Madras) 21 1; Tamizul Huq Vs. Shamsul Huq, 43DLR (AD) 34; Adnan Afzal Vs. Sher Afzal, PLD 1969(SC) 187; Hamilton’s translation of the Hedaya, Volume 1, page 146; Volume II of Syed Ameer Ali’s Muhammadan Law, 5th Edition, page 427—Cited. Sections—5 and 24 The Family Courts Ordinance, 1985 applies to all citizens of Bangladesh irrespective of their religious faith. If Section 24 is read with section 5 of the Ordinance it will be evident that not only the Muslims but also the members of other communities professing other religion come within the ambit of the Ordinance and they are entitled to avail themselves of the forum of the Family Court for speedy settlement of disputes regarding maintenance, guardianship, custody of the children etc. and the Family Court has the exclusive jurisdiction to try these matters. Pachan Rissi Das Vs. Khuku Rani Dasi, 17 BLD (HCD) 563. Section—5(b) . Section—5(b) Restitution of Conjugal Right Mohammedan Law Section—281 Suit for restitution of Conjugal rights Section 5(b) of the Family Court Ordinance, 1985 and section 281 of the Mohammadan Law provides that where a wife without lawful cause ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights. The language used in both the sections of law is one and the same. The view taken by a Single Judge of the High Court Division that “the law of restitution of conjugal rights is void” while exercising power under section 115 of the Code, cannot be endorsed to strike down a piece of legislation practiced over a long period. The legitimacy or otherwise of a valid piece of legislation can only be decided in writ jurisdiction under Article 102 of the Constitution. Hosna Jahan (Munna) Vs. Md. Shajahan (Shaju) and ors, 18 BLD (HCD) 321. Section—6(1)(a)(b) Institution of suit Every suit under the Ordinance shall be instituted by the presentation of a plaint to the Family Court within the local limits of whose jurisdiction the cause of action has wholly or partly arisen or the parties reside or last resided together. Provided that in a suit for dissolution of marriage, dower or maintenance, the Court within the local limits of whose jurisdiction the wife ordinarily resides, shall also have jurisdiction to try such a suit. Mossammat Jesmin Akhter and others Vs A S M Moniruzzaman , 21 BLD (HCD) 160. Section—6(4)(g) Code of Civil Procedure, 1908, Order VII Rule 7 Per A.T.M. Afzal, CJ: The law requires that the relief must be specifically claimed either simply or in the alternative. It is true that general or other relief which the Court may think just may be granted although not specifically asked for. But the essential conditions are that the averments in the plaint must justify such relief and the defendant must get an opportunity to contest such relief. In the name of granting general or other relief the court cannot and would not mount any surprise on the defendant make liable for something which does not arise out of the plaint and as such he had no occasion to answer the same. This is merely an extension of the principle of natural justice. The defendant was admittedly absent at the hearing of the revision before the High Court Division. The worst that could happen to him was that the Rule could have been discharged for default or on merit and the appellate judgment and decree would have been maintained in that case. But if the learned Judges entertained some bright and innovative ideas about some verses of the Quran hitherto not known for saddling the defendant with more liability than the plaintiff had claimed and received, then was it not necessary and lot elementary that the defendant ought to have been put on notice again? It was like enhancing the sentence of an accused in exercise of revisional jurisdiction in a criminal case. Could any tribunal do it without putting him on prior notice? This is exactly what has been done by the High Court Division which to say the least, was unfortunate. Md. Hefzur Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27. Section—6(4)(g) and 17 Code of Civil Procedure, 1908, Section—115 Per Mustafa Kamal, J: Section 6(4)(g) of the Ordinance provides that the plaint shall contain inter alia the relief which the plaintiff claims. An appeal lies under section 17 of the Ordinance to the Court of District Judge. The High Court Division interferes in revision under section 115 of the Code of Civil Procedure when the lower appellate Court appears to have committed an error of law resulting in an error in the decision occasioning failure of justice. In such a case the High Court Division may make such order in the case as it thinks fit. The High Court Division did not say in the impugned judgment that the lower appellate Court committed any error of law on the point of maintenance. Giving the plaintiffs a substantive relief beyond the frame of the suit is beyond the jurisdiction of the revisional court and is a sad case of judicial excess defying all judicial norms and trampling the judicial procedure. Md. Hefzur Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27. Section—16(3) In the execution proceeding whether the subsequent execution against the judgment- debtor is maintainable or not? From the materials on record it was found that on the own seeking of the petitioner 40 installments were granted but the petitioner did not pay a single installment. The execution was started for one installment only in respect of Tk. 13,000/- and odd whereas the total decree was for Tk. three lac and odd and as such the entire decretal amount remained unpaid. As a matter of fact, the execution was for one installment and there is no legal bar to proceeding with the executing under section 16(3) of the Ordinance for the unpaid amount. The entire amount having remained unpaid. there is no legal bar to proceeding with the subsequent execution. Md. Serajul Islam Vs Maksuda Akhter (Navy) Advocate, 20 BLD (AD) 84. Section—16(3B) In view of the provision of section 16(3B) of the Ordinance, a fresh and separate cause of action will arise for failure to pay money of each and every installment for the purpose of sending the judgment-debtor to imprisonment for his failure to pay the money under each installment. Maksuda Aktar Vs Md Serajul Islam, 19 BLD (HCD) 466. Ref: 1981 BCR 212; Karson Ranee Chawda, AIR 1958’99—Cited. Section—16(5) Enforcement of decrees Under the general law the trial Court may allow payment of the installments even after the passing of the decree under certain circumstances. Under sub-section (5) of Section 16 of the Ordinance it is permissible for the Court to allow installments even after the passing of the decree. The difference between the general provisions and those provided in section 16(5) of the Ordinance is that whereas under the former the power is hedged by certain conditions including one of limitation. But under sub-section (5) of section 16 of the Ordinance there is no such condition except that the power should be exercised by way of proper judicial discretion. This power is wider under subsection (5) of section 16 of the Ordinance and it may be exercised either on the application of a party or even suo motu so long as the decree remains unsatisfied. A Family Court therefore has the power to allow installments as it deems fit even after the passing of the decree. Reshma Sultana Vs Khaez Ahmed Mojumder, 17 BLD (AD) 72. Ref: A.I.R. 1921 (Patna) 340; A.I.R. 1932 Allahabad 273 (FB), A.I.R. 1943 Nagpur 340 (F.B); A.I.R. 1985 (Andhra Pradesh) 49;— Cited. Section—20 Code of Civil Procedure, 1908, Order XLI Rule 27 Section 20 of the Ordinance is a bar to the application of the Civil Procedure Code in a Family Court proceeding with the exception of sections 10 and 11 under the Family Courts Ordinance. The lower appellate Court cannot take evidence under Order XLI Rule 27 of the Code as the provisions of appeal in the Family Courts Ordinance do not provide for taking of evidence. Family Courts Ordinance being a special law must be applied strictly. The appellate Court cannot also remand the case to the trial Court as the Ordinance does not provide for any such provision. Saleha Begum Vs Dilruba Begum, 21 BLD (HCD) 422. Section—24 Guardians and Wards Act, 1890, Sections—12 and 13 Since the procedure under Order XLI Rule 27 is a bar under section 20 of the Ordinance in a Family Court proceeding the only recourse left to the lower appellate Court is to fall upon section 24 of the Ordinance to follow the procedure laid down in Guardians Wards Act, while deciding the question of guardianship and custody of a minor. Saleha Begum Vs Dilruba Be gum, 21 BLD (HCD) 422. Ref: Azad Alam Vs. Zinnat Khanam, 1 BLC(AD)24; Yusuf Ali Mamoonji Vs. Alibhoy, AIR 1925 Lahore 567 2 BLT31; 14 BLD 291—Cited. Section 3—The Family Appellate Court cannot exercise power in sending the suit back on remand to the Family Court for disposal and it can only decide the appeal keeping its authority within the four walls of the Ordinance itself. Atiqur Rahman vs Ainunnahar 52 DLR 453. Sections 3 and 5—Plaintiffs suit for enhanced maintenance for her daughter under the Ordinance upon fresh cause of action is maintainable notwithstanding the earlier order of the Magistrate in exercise of jurisdiction under section 488 CrPC. Kowsar Chowdhury vs Latifa Sultana 54 DLR 175. Sections 3, 5 & 27—Order for maintenance of wife and son—purpose of the Family Courts Ordinance is to provide for speedy disposal of family matters by the same forum. There will be anomaly and multiplicity of proceedings if, in spite of the establishment of Family Courts, the Magistrate continues to entertain cases for maintenance. Provisions made in the Family Courts Ordinance have ousted the jurisdiction of the Magistrates to entertain application for maintenance which is a Family Court matter. Md Abdul Khaleque vs Selina Begum, 42 DLR 450. Sections 3, 5 & 4—Family Courts Ordinance applies to all citizens irrespective of religion. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47. Section 4—The Family Courts Ordinance has not taken away any personal right of any litigant of any faith. It has just provided the forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47. Section 5—A person professing any faith has got every right to bring suit for the purpose as contained in this section—a Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance. Nirmal Kanti Das vs Sreemati Biva Rani 47 DLR 514. Section 5—A person professing any faith has got every right to bring suit for the purpose as contained in this section—a Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance. Nirmal Kanti Das vs Biva Rani 47 DLR 514. Section 5—After the coming into force of the Family Courts Ordinance the Criminal Court’s jurisdiction has been ousted in respect of awarding maintenance except in case of pending proceedings. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47. Section 5—Under the Family Courts Ordinance not only the wife is permitted to file a suit in the Family Court for her maintenance—she can also claim maintenance of her child in the same suit. It was not necessary for the child to file a suit for maintenance himself or to become a coplaintiff with his mother in suit. Saleha Begum vs Kamal Hossain 50 DLR 180. Section 5—If any agreement or assurance is reached between the parties that cannot debar the Court from deciding as to where the “welfare” and the “benefit” of the minors lie. Such assurance or agreement cannot have any bearing on the welfare of the minors which is to be determined by the Court. Nargis Sultana vs Aminul Bor Chowdhury 50 DLR 532. Section 5-Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. Bazlur Rahman Sikder vs Taher Begum Shamima 50 DLR 612. Section 5—ln view of the advance by way of ijtihad made in the right directions within the bounds of Sunni Law, the enunciation on past maintenance made in 1964 by the Lahore High Court being affirmed twice by the Pakistan Supreme Court in this respect should not be overlooked or discarded. The High Court Division was therefore wrong in denying past maintenance to the appellant on the ground of lack of prior agreement. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5—Section 5 of the Ordinance of 1985 only means that if there are provisions in the Ordinance which are different from or are in conflict with the provisions of any other law then the provisions of the said Ordinance will prevail. Section 5 does not debar the application of Limitation Act to suit filed under the Ordinance of 1985. The fact that the Ordinance of 1985 speaks of “Suit”, “plaint”, “Written statement”, “decree” etc. clearly attracts the Limitation Act under section 29(2) thereof. Jamila Khatun vs Ruslom Ali 48 DLR (AD) 110. Section 5—Residuary Article 102 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5—Under section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all the six subjects mentioned in section 5 relate to suits exclusively between husband and wife. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5—Children in easy circumstances under Mohammadan Law are bound to maintain their poor parents, although the latter may be able to earn something for themselves. These poor parents may also file a suit in Family Court for maintenance from their opulent children. Similarly, poor or disabled relatives, even servants of the wife can maintain a suit for maintenance under the Ordinance of 1985 under circumstances enjoined by Mohammadan Law. Jam ha Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5—Family Court has got every jurisdiction to decide as to whether the ‘kabinnama’ in question is a genuine and valid document or not and whether any marriage between the petitioner and opposite party was ever solemnized or not before it decides to grant any decree for dower and/or maintenance. Shafiqul Huq vs Mina Begum 54 DLR 481. Section 5—The child born during the subsistence of the marriage is a legitimate child and entitled to maintenance till his majority. Jashimuddin (Md) alias Md Jashimuddin vs Dali Begum 56 DLR 358. The Family Court Ordinance, 1985, Section 5 The order passed by the Family Court directing plaintiff No. 1 to make arrange¬ment to take minor plaintiff No.2 to see her grandmother, has lost its factual and legal impact. It also appears from the judgment and order of the Appellate Court that plaintiff No.l divorced the present petitioner and in the meantime, she has taken a second husband and is now living with her second husband. Since the grandmother of the minor plaintiff No.2 died, we do not see any reason to interfere in the matter, al¬though we feel very sad that the grand¬mother could not see her minor grand-daughter, plaintiff No.2 during her life time due to the consumption of time in the legal process already resorted to by the parties. However, the petitioner who is the father of the minor child, if so advised, may apply to the Family Court to see his daughter and if such ap¬plication is filed the Family Court would consider the same keeping in mind that he, being the father, has every right to see his daughter. It is true that the instant suit has been filed by the plaintiffs for dower and maintenance, even then the Family Court will not be out of its juris¬diction to allow the father to see his daughter. We like to further observe that since divorce has already taken place be¬tween plaintiff No. 1 -respondent and the defendant-petitioner, arrangement to see the minor plaintiff No.2 can be made at neutral place, either at the chamber or residence of any of the learned Advocate of the respective parties or at any other place at which the parties may agree. Suruzzaman vs. Mrs. Farida Yasmin (Md. Abdul Wahhab Miah J)(Civil) 10 ADC 346. Sections 5 & 23—Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as enumerated in sçction 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47. Sections 5 & 23—Provisions of this Ordinance are applicable not only to the Muslim community but also to other communities constituting the populace of Bangladesh. Meher Negar vs Mojibur Rahman 47 DLR 18. Section-5 (a) Family Courts have jurisdiction to entertaintiy and dispose of any suit relating to the matters in clauses (a) to (e) section 5 of the Family Courts Ordinance only between the litigants who are Muslims by the faith. Krishnapada Talukder Vs Geetasree Alias Baby 2BLT (HCD)-208 (b) The preamble of a statute is not ordinarily on independent enactment able to confer any right or to restrict or widen the enacting part which is clear and unambiguous. Even the preamble is to be disregarded when there is conflict between section and preamble and in that case express provisions of the section are to be given full effect. Krishnapada Talukder Vs Geetasree Alias Baby 2BLT (HCD)-208 Section-5 Family Courts Ordinance applies to all citizens irrespective of religion — “Subject to” has not created any embargo in the jurisdiction of the Family Courts in respect of cases and suits filed by citizens professing religion other than Islam. But while deciding the cases of the subjects enumerated in section 5 it is clear that Family Courts will follow the personal laws of those subjects. Pachan Rishi Das Vs. Khulai Rani Dasi 5BLT (HCD)-174 Section-5 Whether the Family Court have jurisdiction to entertain the suit and to decide the question of validity of the marriage between the parties which was denied by the defendant Family Court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating or arising out of restitution of conjugal right, dower, maintenance etc. which would obviously include the determination of the validity of a marriage as that is related to an inter-connected with the question of determination of dower, maintenance etc. Any other interpretation will be simply preposterous. Md. Chan Mia Vs. Rupnahar 6BLT (HCD)-92 Section-5 The appellate court below hold that the plaintiff got five bighas of land as dower and thereafter, the money which was given to the defendant No.1 by selling five bighas of land was money loan by the wife to the husband which cannot be treated as dower — the family court cannot adjudicate upon the dispute. Held: The court of appeal below erred law in holding that the money given by the plaintiff by selling 5 bighas of land to the defendant No.1 was not dower and that the said money was loan. The court of appeal below in the premises, has committed error of law in holding that the said dispute cannot be adjudicated upon by the family court. I am of the view that the family Court has rightly directed the defendant No.1 to give 5 bighas of land as dower. Most. Rowshan Ara Begum Chowdhury Vs. Tahera Noor Jahan & Ors. 10 BLT(HCD)-307 Section-5 read with Specific Relief Act, 1877 [I of 1877] Section-39 On 12.10.2000 opposite party No.1 instituted the family suit before the Family Court for dower and maintenance. The petitioner has already appeared and filed a written statement denying his marriage with her. He has got every opportunity to challenge the ‘Kabinnama’ and the solemnization of the marriage on the very same grounds on which he on 22.10.2000 filed Title suit No.296 of 2000 before a Subordinate Judge. Family Court has got every jurisdiction to decide as to whether the ‘Kabinnama’ in question is a genuine and valid document or not and whether any marriage between the petitioner and Opposite Party No.1 was ever solemnized or not before it decides to grant any decree for dower and /or maintenance. In such a suit for a decree for dower and/or maintenance, no declaration in respect of the ‘Kabinnama’ or cancellation of the ‘Kabinnama’ is at all necessary. Family Court therefore cannot be expected to wait for the final decision of a title suit on like issues as nobody can surely say when such title suit would find the end of the tunnel. Moreover, it would be acting to frustrate the very purpose of the Ordinance. Md. Shafiqul Haque Vs. Mina Begum 10 BLT (HCD)-185 Section- 17(1)(5) Whether a decree will be drawn up by the Family Court after the pronouncement of the judgement. The formal expression of a decision of a Civil Court is an order. The word ‘Order’ occurring in sub-sections 1 and 5 of section 17 may be said to include any ‘decision’ rendered by a court on a question between the parties of a proceeding before the court. The “Decision” may be both interlocutory and final. The decision rendered by the Family Court is final decision/judgement setting the controversy and determining the rights of the pareties in the suit on consideration of the facts, issues and legal aspect and the same is not an interlocutory order-a decree will be drawn up by the Family Court after the pronouncement of the judgement. Ms. Farhat Rahman Vs. Roomee Tarek Moudud 8BLT(HCD)-108 Section-5 (D) The Muslim Family Laws Ordinance, 1961 Section-9, Read with The Code of Criminal Procedure, 1898 Section-488 Past maintenance — A wife can claim past maintenance for herself and for her children for only 6 years prior to the filing of the suit. From a reading of the entire ordinance of 1985 it appears that the provisions thereof are intended to provide for the establishment of Family Courts and for matters connected therewith and are not intended to make provisions for modification or amendment of Mohammedan law or any other substantive law. The Ordinance is indeed procedural in nature. Jamila Khatoon Vs. Rastom Ali 4BLT(AD)97 Under section 5 of Ordinance of 1985 the wife can claim past maintenance for the child if she has been supporting the child in the same household without any contribution from the father. But if she does not claim separate maintenance for the child, the court will consider the overall needs, keeping in view the fact that she has been supporting a child in the same household. In either case, the claim is subject to Article 120 of the Limitation Act. Jamila Khatoon Vs. Rastom Ali 4BLT (AD)97 Section-20 The affidavit of divorce is a public document and it requires no formal proof the Appellate Court having the power of the original Court has rightly admitted the said instrument of divorce and legally marked the same as Ext. A. Sirajul Islam Vs. Helena Begum & Ors. 3BLT (HCD)-40 Section-21 Attorney in the instant case the defendant petitioner—the defendant petitioner is the husband of the plaintiff-opposite-party and he is male and not a pardahnashin lady and he cannot be represented by an authorised agent, here his brother in whose favour the Power of Attorney has been made by him [defendant]. Md. Atiqur Rahaman Vs. Ainunnahar 7BLT (HCD)-241 Financial Institution Act, 1993 Section-25(3) We are of the opinion that the embargo on banks, insurance companies and other financial institutions to nominate its directors on the Board of a financial institution is based on a reasonable classification. It appears to us to be obvious that the legislative policy is to exclude the same set of persons to manage, control, regulate and monopolize the policy making functions of capital generating financial institutions. A textile manufacturing company is generating goods and it may not be immoral from the point of view of financial policy to allow the directors of such a company to be represented on the Board of financial institution in which the textile manufacturing company may have a shareholding interest. But it appears to be the police of the legislature that directors of capital generating institutions should not be allowed to flock together in a financial institution to control and monopolize the capital market. City Bank Ltd. Vs. Bangladesh Bank & Ors 8BLT (AD)-20 Section-25(3) Section 25(3) does not on terms make any distinction between directors who represent their own shareholding individually and nominee directors who represent their companies shareholdings. It applies to all, whether they are individuals or nominees of a bank, insurance or financial institution. Phoenix Leasing Ltd. & Ors. Vs. Bangladesh Bank & Ors 8BLT (AD)-117 Section-25(3) and 48 Withdrawal of exemption by Bangladesh Banks Notification dated 14.12.1996 is prospective and not retrospective as contended by the petitioners learned Counsel This interpretation of the impugned notification dated 14.12.1996 is not acceptable on the face of it. Section 25(3) of the said Act is a barring provision making certain persons ineligible for being appointed as directors of a financial institution. Until there is an exercise of power of exemption under section 48, the bar remains as a permanent provision in the said Act. When an exemption is given the bar under section 25(3) is relaxed: but when the exemption is withdrawn the legal consequence is he revival of the permanent bar under section 25(30, which will affect the existing nominee directors including petitioner Nos.2-5 The question of prospectively and retrospectively does not arise in these circumstances. It is a case of certain section of an Act remaining in abeyance as if in a state of hibernation because of an exemption granted and the revival of it as soon as the exemption is withdrawn. Phoenix Leasing Ltd. & Ors. Vs. Bangladesh Bank & Ors 8BLT (AD)-117 Fire Insurance Policy Condition Nos 3, 13 & 19 Read with word “Action” (a) The plaintiff-respondent established a homeopathic laboratory and a fire insurance policy was taken from defendant No. 1 (Sadharan Bima Corporation). covering the risk of fire due to fire which arose out of short circuit of electricity the laboratory of the plaintiff was turn to ashes. Sadharan Bima Corporation Vs Sanjit Kumar Das 2BLT (HCD)-101 (b) There was no electricity connection in the room where the spirits were stored but in other rooms the electricity connection for lighting the rooms was there — since the plaintiffs house is adjacent to the laboratory and he is the owner of both laboratory and house only for lighting purpose of the room of the laboratory he extended the electricity to his laboratory room from his house — no Misdescription about electricity connection. Sadharan. Bima Corporation Vs Sanjib Kumar Das 2BLT (HCD)-101 (c) After filling up and submission of the proposal form for fire insurance the officers of the defendant No.! (Sadharan Bima Corporation) inspected and visited the area and the laboratory. The officers of the defendant No.1 had given a favourable report and on the basis of the report of their officers, the defendant No. I became satisfied and then issued fire insurance policy to the plaintiff — now the defendant No. 1 cannot take a different view only to avoid the payment of compensation to the plaintiff. Sadharan Bima Corporation Vs Sanjit Kumar Das 2BLT (HCD)-101 (d) The condition No. 3 of the insurance Policy Ext. Uma which clearly shows that the properties of S. B. Homeo Laboratory situated at 20/46, Zilla Parishad Super Market, Court Road, Chittagong, was insured with the Green Delta Insurance Company. But the present property of S. B. Homeopathic Laboratory is situated of the village Kulkurmai, Police Station Rangunia — it appears that condition No. 3 has not been in any way violated by the plaintiff. Sadharan Bima Corporation Vs Sanjib Kumar Das 2BLT (HCD)-101 (e) The condition No. 19 of the Insurance Policy—the claim must be a subject matter of any legal proceeding or arbitration within 12 months from the date of damage — the word “action” in condition No. 19 will not only mean a suit or other legal proceeding in court for recovery of the damage, but it will also mean and include any legal action pending before the authority who is under legal obligation to compensate the damage under the Insurance Policy condition Nos 13 and 19 are not contradictory or contrary, rather they are supplementary and complimentary to each other in order to give an effective relief to the sufferer and the aggrieved person — the present case is fully covered by condition No. 13 of the Insurance Policy, as the “action” contemplated in condition No. 19 will mean and include the action which was legally pending before the insurer for decision as to whether and insurer would compensate the loss and damage of the plaintiff — the claim of the plaintiff cannot be time barred in any manner — appeal dismissed. Sadharan Bima Corporation Vs Sanjib Kumar Das 2BLT (HCD)-101 Fundamental Rules Rule-18 The petitioner not being on foreign service his service conditions are controlled by Rule-18. Admittedly the petitioner was absent from service for more than 11 years and Rule- 18 provides that a Government servant ceases to be a Government employee after 5 years continuous absence from duty. From the words employed in Rule 18 of the Fundamental Rules it seems to us that for taking action as has been taken in the instant case no prior show cause necessary as Rule- 18 take effect automatically on expiry of 5years continuous absence from service by a Government employee, other than those who are on deputation on foreign service. Sarder Borhan Uddin Vs. Govt. of Bangladesh & Ors 8BLT(AD)-40. Sections 5 & 23—Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate. It can safely be presumed that our law makers while promulgating Ordinance No.XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word ‘suit’ was specifically and unambiguously used in section 5 instead of the word ‘matters’ which has been used in the Pakistan law. The term ‘matters’ has wider meaning than the term suit’ and the former term definitely includes civil suits as well as criminal or quasi criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18. Sections 5 & 24—Sections 5 and 24 of the Family Courts Ordinance are also applicable to the members of other than the Muslim community and they are entitled to avail settlement of disputes regarding maintenance, etc and the Family Court has got the exclusive jurisdiction to try those matters. Ganesh Chandra Das vs Arati Acharjya 54 DLR 348. Section 6(2)—A Family Court like any other Courts has got inherent jurisdiction to decide whether it has got jurisdiction to entertain a suit. Krishnapada Talukdar vs Geetashree Talukdar 47 DLR 591. Section 16(4) & (5)—Call it the executing Court or the trial Court, it is nonetheless the Family Court which passed the decree and its power to allow instalments even after passing of the decree is undoubted. Resima Sultana vs Khaez Ahmed Mojumder 49 DLR (AD) 57. Section 17—The appeal before the Court of the District Judge against an interlocutory order passed by the Family Court was not maintainable. Younus Mia vs Abida Sultana Chhanda 47 DLR 331. Section 17—The order in its widest sense may be said to include any decision rendered by a court on question between the parties of a proceeding before the court and the same can be construed or read either final or interlocutory and both are appealable. Atiqur Rahman vs Ainunnahar 52 DLR 453. Section 17—The order under challenge is an interlocutory order and the same is appealable— this civil revision petition is not at all maintainable. Firojul Islam vs Zahanara Akter 52 DLR 107. Section 17—The mere fact of first plaintiffs not having preferred an appeal or a cross-appeal or cross-objection would not by itself be sufficient to justify refusal to exercise the power contained in rule 33 of Order 41 of the Code. Hasibur Rahman vs Shakila Begum 53 DLR 152. Section 17(5)—The Family Court passed the impugned order rescheduling the mode of payment of the decretal dues by the petitioner in exercise of his judicial discretion. Alamgir vs Habea Begum 52 DLR 157. Section 17(7)—Under section 17(7) of the Ordinance a Subordinate Judge can exercise the appellate power in such family matters only after an appeal is transferred to him by the District Judge for disposal. He has got no like power of a District Judge to take cognizance of an appeal by way of admission. Shafiqul Huq vs Mina Begum 54 DLR 481. Section 20—When section 20 of the Ordinance says that provisions of the Code “shall not apply to proceedings before the Family Courts” it means that those provisions of the Code shall not apply which are in the Ordinance as prescribed modes for conducting judicial business by the Family Courts. Younus Mia vs Abida Sultana Chhanda 47 DLR 331. Section 20—Section 20 of the Family Courts Ordinance is a bar to the application of the Civil Procedure Code in Family Court proceeding with the exception of sections 10 and 11 under the Family Courts Ordinance. The lower appellate Court cannot take evidence as the provisions of appeal in the Family Courts Ordinance does not provide for taking of evidence. It being special law must be applied strictly. The appellate Court cannot also remand the case to the trial Court as the Family Court Ordinance does not provide for any such provision. Saleha Begum vs Dilruba Begum 53 DLR 346. Section 20(1)—Court can take into account subsequent event necessitating amendment by addition of new relief that may be allowed to do complete justice. Nazrul Islam Majumder vs Tahamina Akhtar 47 DLR 235. Sections 23 & 5—Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as enumerated in section 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47. Sections 23 & 5—Provisions of this Ordinance are applicable not only to the Muslim community but also to other communities constituting the populace of Bangladesh. Meher Negar vs Mojibur Rahman 47 DLR 18. Sections 23 & 5—Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate. It can safely be presumed that our law makers while promulgating Ordinance No.XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word ‘suit’ was specifically and unambiguously used in section 5 instead of the word ‘matters’ which has been used in the Pakistan law. The term ‘matters’ has wider meaning than the term ‘suit’ and the former term definitely includes civil suits as well as criminal or quasi criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the Family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18. Section 24—Since the procedure under Order XLI rule 27 is a bar under section 20 of the Family Courts Ordinance in a Family Court proceeding only recourse left to the lower Appellate Court is to fall upon section 24 of the Ordinance to follow the procedure laid down in Guardians and Wards Act while deciding the question of guardianship and custody of a minor. Saleha Begum vs Dilruba Begum 53 DLR 346. Section 3– The Family 'Appellate Court cannot exercise power in sending the suit back on remand to the Family Court for disposal and it can only decide the appeal keeping its authority within the four walls of the Ordinance itself. Atiqur Rahman (Md) vs Ainunnahar 52 DLR 453 Sections 3, 5 & 4– Family Courts Ordinance applies to all citizens irrespective of religion. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47. Sections 3 & 5– Plaintiffs suit for enhanced maintenance for her daughter under the Ordinance upon fresh cause of action is maintainable notwithstanding the earlier order of the Magistrate in exercise of jurisdiction under section 488 CrPC. Kowsar Chowdhury vs Latifa Sultana 54 DLR 175. Section 4– The Family Courts Ordinance has not taken away any personal right of any litigant of any faith. It has just provided the forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47. Section 5– A person professing any faith has got every right to bring suit for the purpose as contained in this section–a Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance. Nirmal Kanti Das vs Sreemati Biva Rani 47 DLR 514. Section 5– After the coming into force of the Family Courts Ordinance the Criminal Court's jurisdiction has been ousted in respect of awarding maintenance except in case of pending proceedings. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47. Section 5– Under the Family Courts Ordinance not only the wife is permitted to file a suit in the Family Court for her maintenance–she can also claim maintenance of her child in the same suit. It was not necessary for the child to file a suit for maintenance himself or to become a co¬-plaintiff with his mother in suit. Saleha Begum vs Kamal Hossain 50 DLR 180. Section 5– If any agreement or assurance is reached between the parties that cannot debar the court from deciding as to where the "welfare" and the "benefit" of the minors lie. Such assurance or agreement cannot have any bearing on the welfare of the minors which is to be determined by the court. Nargis Sultana vs Aminul Bor Chowdhury 50 DLR 532. Section 5– Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. Bazlur Rahman Sikder vs Taher Begum Shamima 50 DLR 612. Section 5– In view of the advance by way of ijtihad made in the right directions within the bounds of sunni Law, the enunciation on past maintenance made in 1964 by the Lahore High Court being affirmed twice by the Pakistan Supreme Court in this respect should not be overlooked or discarded. The High Court Division was therefore wrong in denying past maintenance to the appellant on the ground of lack of prior agreement. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5– Section 3 of the Ordinance of 1985 only means that if there are provisions in the Ordinance which are different from or are in conflict with the provisions of any other law then the provisions of the said Ordinance will prevail. Section 3 does not debar the application of Limitation Act to suit filed under the Ordinance of 1985. The fact that the Ordinance of 1985 speaks of "Suit", "plaint", "Written statement", "decree", etc. clearly attracts the Limitation Act under section 29(2) thereof. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5– Residuary Article 102 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5– Under section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all the six subjects mentioned in section 5 relate to suits exclusively between husband and wife. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5– Children in easy circumstances under Mohammadan Law are bound to maintain their poor parents, although the latter may be able to earn something for themselves. These poor parents may also file a suit in Family Court for maintenance from their opulent children. Similarly, poor or disabled relatives, even servants of the wife, can maintain a suit for maintenance under the Ordinance of 1985 under circumstances enjoined by Mohammadan Law. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5– Family Court has got every jurisdiction to decide as to whether the 'kabinnama' in question is a genuine and valid document or not and whether any marriage between the petitioner and opposite party was ever solemnised or not before it decides to grant any decree for dower and/or maintenance. Shafiqul Huq (Md) vs Mina Begum 54 DLR 481 Section 5– The child born during the subsistence of the marriage is a legitimate child and entitled to maintenance till his majority. Jashimuddin (Md) alias Md Jashimuddin vs Dali Begum and another 56 DLR 358 Sections 3, 5 & 4—Family Courts Ordinance applies to all citizens irrespective of religion. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47. Section 4—The Family Courts Ordinance has not taken away any personal right of any litigant of any faith. It has just provided the forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47. Section 5—A person professing any faith has got every right to bring suit for the purpose as contained in this section—a Hindu wife is not debarred from bringing a law suit for her maintenance agnist her husband under this Ordinance. Nirmal Kanti Das vs Sreemati Biva Rani 47 DLR 514. Section 5—A person professing any faith has got every right to bring suit for the purpose as contained in this section—a Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance. Nirmal Kanti Das vs Sreemati Biva Rani 47 DLR 514. Section 5—After the coming into force of the Family Courts Ordinance the Criminal Court's jurisdiction has been ousted in respect of awarding maintenance except in case of pending proceedings. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47. Section 5—Under the Family Courts Ordinance not only the wife is permitted to file a suit in the Family Court for her maintenance—she can also claim maintenance of her child in the same suit. It was not necessary for the child to file a suit for maintenance himself or to become a co-plaintiff with his mother in suit. Saleha Begum vs Kamal Hossain 50 DLR 180. Section 5—If any agreement or assurance is reached between the parties that cannot debar the court from deciding as to where the "welfare" and the "benefit" of the minors lie. Such assurance or agreement cannot have any bearing on the welfare of the minors which is to be determined by the court. Nargis Sultana vs Aminul Bor Chowdhury 50 DLR 532. Section 5—Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. Bazlur Rahman Sikder vs Taher Begum Shamima 50 DLR 612. Section 5—In view of the advance by way of ijtihad made in the right directions within the bounds of sunni Law, the enunciation on past maintenance made in 1964 by the Lahore High Court being affirmed twice by the Pakistan Supreme Court in this respect should not be overlooked or discarded. The High Court Division was therefore wrong in denying past maintenance to the appellant on the ground of lack of prior agreement. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5—Section 3 of the Ordinance of 1985 only means that if there are provisions in the Ordinance which are different from or are in conflict with the provisions of any other law then the provisions of the said Ordinance will prevail. Section 3 does not debar the application of Limitation Act to suit filed under the Ordinance of 1985. The fact that the Ordinance of 1985 speaks of "Suit", "plaint", "Written statement", "decree" etc. clearly attracts the Limitation Act under section 29(2) thereof. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5—Residuary Article 102 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5—Under section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all the six subjects mentioned in section 5 relate to suits 98 to file a suit in the Family Court for her maintenance—she can also claim maintenance of her child in the same suit. It was not necessary for the child to file a suit for maintenance himself or to become a co-plaintiff with his mother in suit. Saleha Begum vs Kamal Hossain 50 DLR 180. —If any agreement or assurance is reached between the parties that cannot debar the court from deciding as to where the "welfare" and the "benefit" of the minors lie. Such assurance or agreement cannot have any bearing on the welfare of the minors which is to be determined by the court. Nargis Sultana vs Aminul Bor Chowdhury 50 DLR 532. —Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. Bazlur Rahman Sikder vs Taher Begum Shamima 50 DLR 612. —In view of the advance by way of ijtihad made in the right directions within the bounds of sunni Law, the enunciation on past maintenance made in 1964 by the Lahore High Court being affirmed twice by the Pakistan Supreme Court in this respect should not be overlooked or discarded. The High Court Division was therefore wrong in denying past maintenance to the appellant on the ground of lack of prior agreement. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. —Section 3 of the Ordinance of 1985 only means that if there are provisions in the Ordinance which are different from or are in conflict with the provisions of any other law then the provisions of the said Ordinance will prevail. Section 3 does not debar the application of Limitation Act to suit filed under the Ordinance of 1985. The fact that the Ordinance of 1985 speaks of "Suit", "plaint", "Written statement", "decree" etc. clearly attracts the Limitation Act under section 29(2) thereof. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. —Residuary Article 102 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. —Under section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all the six subjects mentioned in section 5 relate to suits exclusively between husband and wife. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. Section 5(d)– Whatever be the meaning of Mataa it is certainly not maintenance as can be claimed within the meaning of maintenance under the Family Courts Ordinance. Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 51 DLR (AD) 172. Section 5(d)– There is a clear direction in respect of a pregnant woman who has been divorced and the direction is to bear her expenses till she has delivered. In the case of such a woman her period of lddat will be till delivery. It is apparent that the maintenance has been related to the period of lddat. Hefzur Rahman (Md) vs Shamsun Nahar Begum 51 DLR (AD) 172. Section 6(4)– In the name of granting general or other relief the Court cannot and would not mount any surprise on the defendant and make him liable for something which does not arise out of the plaint and, as such, he had no occasion to answer the same. This is merely an extension of the principle of natural justice (ATM Afzal CJ). Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 51 DLR (AD) 172. Section 7(1)(3)(5)– The Muslim Family Laws Ordinance, 1961 when interpreted in the light of Articles 8 and 8(1A) of the Constitution preserves iddat as laid down in the Holy Qur–an : (Mustafa Kamal J). Hefzur Rahman (Md) vs Shamsun Nahar Begum 51 DLR (AD) 172. — Children in easy circumstances under Mohammadan Law are bound to maintain their poor parents, although the latter may be able to earn something for themselves. These poor parents may also file a suit in Family Court for maintenance from their opulent children. Similarly, poor or disabled relatives, even servants of the wife can maintain a suit for maintenance under the Ordinance of 1985 under circumstances enjoined by Mohamma¬dan Law. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. & 23— Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as enumerated in section 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47. 5 & 23— Provisions of this Ordinance are applicable not only to the Muslim community but also to other communities constituting the populace of Bangladesh. Meher Negar vs Mojibur Rahman 47 DLR 18. Sections 5 & 23— Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate. It can safely be presumed that our law makers while promulgating Ordinance No.XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word 'suit' was specifically and unambiguously used in section 5 instead of the word 'matters' which has been used in the Pakistan law. The tern 'matters' has wider meaning than the term 'suit' and the former term definitely includes civil suits as well as criminal or quasi-criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18. (2)— A Family Court like any other Courts has got inherent jurisdiction to decide whether it has got jurisdiction to entertain a suit. Krishnapada Talukdar vs Geetashree Talukdar 47 DLR 591. Call it the executing Court or the trial Court, it is nonetheless the Family Court which passed the decree and its power to allow installments even after passing of the decree is undoubted. Resima Sultana vs Khaez Ahmed Mojumder 49 DLR (AD) 57. Section 17— The appeal before the court of the District Judge against an interlocutory order passed by the Family Court was not maintainable. Younus Mia (Md) vs. Abida Sultana Chhanda 47 DLR 331. Section 20— When section 20 of the Ordinance says that provisions of the Code "shall not apply to proceedings before the Family Courts" it means that those provisions of the Code shall not apply which are in the Ordinance as prescribed modes for conducting judicial business by the Family Courts. Younus Mia (Md) vs Abida Sultana Chhanda 47 DLR 331. Section 20(1)— Court can take into account subsequent event necessitating amendment by addition of new relief that may be allowed to do complete justice. Nazrul Islam Majumder (Md) vs Tahamina Akhtar and another 47 DLR 235. Sections 23 & 5— Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as enumerated in section 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47. Sections 23 & 5— Provisions of this Ordinance are applicable not only to the Muslim community but also to other communities constituting the populace of Bangladesh. Meher Negar vs Mojibur Rahman 47 DLR 18. Sections 23 & 5— Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate. It can safely be presumed that our law makers while promulgating Ordinance No.XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word 'suit' was specifically and unambiguously used in section 5 instead of the word 'matters' which has been used in the Pakistan law. The term 'matters' has wider meaning than the term 'suit' and the former term definitely includes civil suits as well as criminal or quasi-criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18. Sections 5, 10, 11, 13 and 20– Section 5— The only ground for condonation of delay is that the petitioner being an employee of Electricity Supply Department, the service of which is declared as essential, it was difficult for him to get leave quickly when needed, is quite cogent ground to condone the delay of 80 days in filing the Family Appeal before the District Judge. Abdur Razzak alias Abdul Razzacjue vs Mohsena Ara Begum and others 10 BLC 490. Section—6(1) Place of institution of suit—Within the local limits of whose jurisdiction the parties reside or last resided together —Parties where reside or last resided together—can be gone into at the time of trial of the suit if a proper issue is raised on the point. Abdul Matlib Gaznvi Vs.Toiyab Ali and others, 12 BLD (AD) 30 - Section—17(1) Appeal—Under section 17(l) of the Family Courts Ordinance there is no scope for any confusion that an appeal shall lie from a judgment, decree or order of a Family Court to the Court of the District Judge’. The Court of the District Judge being a civil Court, the provisions of the Code of Civil Procedure would apply to the proceedings before the Court of the District Judge. Md. Moinuddin Vs. Anna Khan Majlish, 10BLD (HCD) 404 Ref: 38 DLR (AD) I 72;—Cited.FOREST ACT, 1927(XVI OF 1927) Section—20 Abatement of a legal proceeding challenging validity of the notifications constituting reserved forest known as Attia Forest—There is no scope for challenging the validity of notification of 1972 under the Forest Act (XVI of 1972) constituting reserved forest after the promulgation of the Attia Forest (Protection) Ordinance (XXXIII of 1982)- All judgments, decrees or orders in respect of Attia Forest shall have no force and all suits, appeals and other legal proceedings chal— lenging constitution of Attia Reserved Forest shall abate-Independently of the Attia Forest (Protection) Ordinance, the Notification of 1972 constituting reserved forest known as Attia Forest is valid. Bangladesh Vs. Abdul Baset Mia, 6 BLD (AD) 62. Section 6(l)(a)(b)— Since the law provides that the Family Court suit is to be filed in a Court where the wife ordinarily resides and such suit ought to have been filed at Faridpur because admittedly the former wife has been residing at Faridpur and considering the question of cause of action and balance of convenience and inconvenience of the parties ends of justice will be met if the present suit pending in the Court of Assistant Judge and Family Court, Barisal is transferred to a competent Court at Faridpur for trial. Jesmine Akhter and others vs ASM Moniruzzaman (Babu) 7 BLC 326. Sections 9(6) and 16(Ka)— Allegation levelled by maternal grandmother of minor boy against petitioner father that the baby was forcibly taken by petitioner from the custody of maternal grandmother cannot be believed as because neither any FIR nor General Diary had been registered with police station or before any law enforcing agency and it also cannot be swallowed that the petitioner along with mastans took the baby forcibly from the custody of maternal grandmother when the third opposite party, the mother of minor boy appears to have waived her right to have the custody of minor boy and kept herself satisfied in respect of entitlement of the custody of the baby with petitioner father. The propriety and legality of the order of Family Judge will be gone into in the miscellaneous appeal and if the order of family Judge is given effect to, the purpose of whole appeal will be frustrated. The appellate Judge was required to stay operation of the said order of the family Judge till disposal of appeal. MA Rajib vs Md Abu Nayees Faruque and others 6 BLC 30. Sections 5 & 23– Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as enumerated in section 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47. Sections 5 & 24– Sections 5 and 24 of the Family Courts Ordinance are also applicable to the members of other than the Muslim community and they are entitled to avail settlement of disputes regarding maintenance, etc and the Family Court has got the exclusive jurisdiction to try those matters. Ganesh Chandra Das vs Arati Acharjya 54 DLR 348 Section 5(d)– Maintenance–The wife is not entitled to past maintenance. Maintenance can be allowed to her only from the date of institution of the suit before the Family Court till three months after the decree for dissolution of the marriage. Neither the child nor the person who maintains it can claim past maintenance from the father unless the same is previously fixed. Rustom Ali vs Jamila Khatun 43 DLR 301. Section 5(h)– The restitution of conjugal right is a reciprocal right thus it is neither discriminatory nor violative of any of the provisions of the Constitution. Chan Mia (Md) vs Rupnahar 51 DLR 292. Section 6(2)– A Family Court like any other Courts has got inherent jurisdiction to decide whether it has got jurisdiction to entertain a suit. Krishnapada Talukdar vs Geetashree Talukdar 47 DLR 591. Section 16(3B)– A fresh and separate cause of action will arise for failure to pay money of each and every installment for the purpose of sending the judgment debtor to imprisonment for his failure to pay the money under each installment. Maksuda Akhter vs Md Serajul Islam 51 DLR 554. Section 16(4) & (5)– Call it the executing Court or the trial Court, it is nontheless the Family Court which passed the decree and its power to allow installments even after passing of the decree is undoubted. Resima Sultana vs Khaez Ahmed Mojumder 49 DLR (AD) 57. Section 17– Remand–The Court of appeal under the Family Courts Ordinance is not competent to remand a suit to the trial Court ¬Scheme of the Family Court is quick disposal of a case between the husband and the wife and for such purpose under section 20 of the Family Courts Ordinance provisions of the Evidence Act and the Code of Civil Procedure (except sections 10 and ll thereof) have been excluded. The Court of appeal below can only decide the appeal and no power to send the case on remand to the Family Court has been given to the Court of appeal below. Hosne Ara Begum vs Alhaj Md Rezaul Karim 43 DLR 543. Section 17– The appeal before the court of the District Judge against an interlocutory order passed by the Family Court was not maintainable. Younus Mia (Md) vs. Abida Sultana Chhanda 47 DLR 331. Sections 17(1) & 20– Court of the District Judge whether a Family Court–under section 17(1) of the Ordinance an appeal shall lie from a judgment, decree or order of Family Court to "the Court of the District Judge." The latter being a Civil Court, provisions of the Code of Civil Procedure would apply to the proceeding before it. There is no scope for thinking that the District Judge referred to in the Ordinance is a persona designata or a Family Court and that provision of Ordinance XLI, rule 19 were not applicable to proceeding arising out of Family Court judgment. Md Moinuddin vs Amina Khan Majlish 42 DLR 483. Section 17– The 'order' in its widest sense may be said to include any decision rendered by a court on question between the parties of a proceeding before the court and the same can be construed or read either final or interlocutory and both are appealable. Atiqur Rahman (Md) vs Ainunnahar 52 DLR 453 Section 17– The order under challenge is an interlocutory order and the same is appealable¬this civil revision petition is not at all maintainable. Firojul Islam (Md) (Firoj) vs Zahanara Akter 52 DLR 107. Section 17– The mere fact of first plaintiffs not having preferred an appeal or a cross–appeal or cross–objection would not by itself be sufficient to justify refusal to exercise the power contained in rule 33 of Order XLI of the Code. Hasibur Rahman (Md) vs Shakila Begum and another 53 DLR 152. Sections 17(1) & 24– Since the word 'Order' has not been defined in the Ordinance it cannot be read to mean as being only final order. Captain Shamsul Alam Chowdhury vs Shirin Alam Chowdhury 43 DLR 297. Section 17(5)– The Family Court passed the impugned order rescheduling the mode of payment of the decretal dues by the petitioner in exercise of his judicial discretion. Alamgir (Md) vs Habea Begum 52 DLR 157. Section 17(7)– Under section 17(7) of the Ordinance a Subordinate Judge can exercise the appellate power in such family matters only after an appeal is transferred to him by the District Judge for disposal. He has got no like power of a District Judge to take cognisance of an appeal by way of admission. Shafiqul Huq (Md) vs Mina Begum 54 DLR 481. Section 20– When section 20 of the Ordinance says that provisions of the Code "shall not apply to proceedings before the Family Courts" it means that those provisions of the Code shall not apply which are in the Ordinance as prescribed modes for conducting judicial business by the Family Courts. Younus Mia (Md) vs Abida Sultana Chhanda 47 DLR 331. Section 20– Section 20 of the Family Courts Ordinance is a bar to the application of the Civil Procedure Code in Family Court proceeding with the exception of sections 10 and 11 under the Family Courts Ordinance. The lower appellate Court cannot take evidence as the provisions of appeal in the Family Courts Ordinance does not provide for taking of evidence. It being special law must be applied strictly. The appellate Court cannot also remand the case to the trial Court as the Family Court Ordinance does not provide for any such provision. Saleha Begum vs Dilruba Begum 53 DLR 346. Section 20(1)– Court can take into account subsequent event necessitating amendment by addition of new relief that may be allowed to do complete justice. Nazrul Islam Majumder (Md) vs Tahamina Akhtar and another 47 DLR 235. Section 24– Since the procedure under Order XLI, rule 27 is a bar under section 20 of the Family Courts Ordinance in a Family Court proceeding only recourse left to the lower Appellate Court is to fall upon section 24 of the Ordinance to follow the procedure laid down in Guardians and Wards Act while deciding the question of guardianship and custody of a minor. Saleha Begum vs Dilruba Begum 53 DLR 346. Section 27– Suit in the Family Court in the face of earlier suit for the self–same relief in the civil Court–There is no bar either under the Family Court Ordinance or under the Code of Civil Procedure in filing two separate suits in two different Courts for the self–same relief. Pending cases in any Court other than the Family Court in matters within the exclusive jurisdiction of the Family Court may continue in such other court if filed before the Family Court Ordinance came in force but there is no bar to withdraw and discontinue a pending case from any other court and in filing a fresh suit in the Family Court for the self–same relief. Abdur Rahman vs Shahanara Begum 43 DLR 599. Section-5 read with Specific Relief Act, 1877 Section-39 On 12.10.2000 opposite party No.1 instituted the family suit before the Family Court for dower and maintenance. The petitioner has already appeared and filed a written statement denying his marriage with her. He has got every opportunity to challenge the ‘Kabinnama’ and the solemnization of the marriage on the very same grounds on which he on 22.10.2000 filed Title suit No.296 of 2000 before a Subordinate Judge. Family Court has got every jurisdiction to decide as to whether the “Kabinnama” in question is a genuine and valid document or not and whether any marriage between the petitioner and Opposite Party No. 1 was ever solemnized or not before it decides to grant any decree for dower and /or maintenance. In such a suit for a decree for dower and/or maintenance, no declaration in respect of the “Kabinnama” or cancellation of the “Kabinnama” is at all necessary. Family Court therefore cannot be expected to wait for the final decision of a title suit on like issues as nobody can surely say when such title suit would find the end of the tunnel. Moreover, it would be acting to frustrate the very purpose of the Ordinance. Md. Shafiqul Haque Vs. Mina Begum 10 BLT (HCD)-185. Section-5 The appellate court below hold that the plaint iff got five bighas of land as dower and thereafter, the money which was given to the defendant \:o. 1 by selling Jive bighas of land was money loan by the wife to the husband which cannot be treated as dower the family court cannot adjudicate upon the dispute. Held: The court of appeal below erred law in holding that the money given by the plaintiff by selling 5 bighas of land to the defendant No. 1 was not dower and that the said money was loan. The court of appeal below in the premises, has committed error of law in holding that the said dispute cannot be adjudicated upon by the family court. I am of the view that the family Court has rightly directed the defendant No. 1 to give 5 bighas of land as dower. Most. Rowshan Ara Begum Chowdhury Vs. Tahera Noor Jahan & Ors. 10 BLT(HCD)-307 Section-17(l)(5) Whether a decree will be drawn up by the Family Court Lifter the pronouncement of the judgement. The formal expression of a decision of a Civil Court is an order, the word “Order’ occurring in sub-sections I and 5 of section 17 may be said to include any “decision” rendered by a court on a question between the parties of a proceeding before the court. The “Decision”‘ may be both interlocutory and final. The decision rendered by the Family Court is final decision/judgement setting the controversy and determining the rights of the parties in the suit on consideration of the facts, issues and legal aspect and the same is not an interlocutory order-a decree will be drawn up by the Family Court after the pronouncement of the judgement. Ms. Farhat Rahman Vs. Roomee Tarek Moudud 8 BLT (HCD)-108. Section-27 Read with Code of Criminal Procedure, 1898 Section-488 Ordinary Criminal Courts have lost jurisdiction to entertain and decide cases those may be filed under Section 488 of the Code of Criminal Procedure relating to maintenance after coming into force of Family Courts Ordinance. Pachan Rishi Das Vs. Khuku Rani Dasi 5 BLT (HCD)-174 General Observation Mobility and discipline of police as an enforcement machinery has deteriorated alarmingly and complete overhauling and reorganization within police force is overdue in order to streamline and strengthen the command to exercise and] establish full control and supervision of the subordinate officers and ministerial staffs. Mobility, vigilance training alertness, imbibed with sense of honesty patriotism and dedication to duty is the call of the hour. It is for the Government of the day to come forward and take appropriate steps in this regard. Otherwise! it may be too late. The State Vs. O. C. Kafrul & Ors 11 BLT (HCD)-511 General Observation In respect of Mr. Shamshul Alam Khan, the then Metropolitan Additional Sessions Judge, 3rd court, Dhaka. An accused cannot be convicted on surmise. There must be direct or very strong circumstantial evidence to prove the guilt of the accused beyond all reasonable doubt. We are of the view that in passing death sentence upon an accused against whom there is no iota evidence or materials before him, the learned Judge has adequately demonstrated that he is not capable of exercising judicial function. In such view of the matter, in the great interest of the credibility of our judicial system, we would strongly recommend that appropriate action should be taken to immediately remove Mr. Shamshul Alam Khan, the then Metropolitan Addition Sessions Judge, 3rd Court, Dhaka fro service in any judicial capacity. We also recommend that inquiries be made regarding his efficiency and integrity. The State Vs. Shahid Javed Gaira @ Garib Miah & Ors 14 BLT (HCD)-502. Government Servant (Displines and Appeal) Rules, 1985 An executive instruction which is an order issued in exercise of statutory power has the force of law. AIR 1970 SC 1314. The numerous rules relating to conditions of services may have to be changed from time to time as the exigencies of the Public Services require. AIR 1959 SC 521. Where during pendency of an appeal new rules had come into force, the old rules should be followed for disposal of the pending appeal. 1975 SLR (Pat) 234. Where certain proceedings are started under certain rules and in the meantime new rules are framed, the proceedings can be continued and concluded under the old rules in the absence of any provision to the contrary in the new rules, 1974 SLR 203. The power of the Government to make rules with retrospective effect cannot be exercised to alter or modify the conditions of service of a Government Servant with retrospective effect to the prejudice of the Government Servant. AIR 1972 SC 628. An administrative instruction cannot modify rule. One set of administrative instructions can however be modified by another set of administrative instructions. I979 SLR 282. The enquiry proceedings cannot be started after a person has retired from service. AIR 1964 Mys 221. The date of retirement of the Government Servant was 30-1-73 and thereafter he was on leave for 6 months preparatory to retirement. This 6 months leave is a retirement benefit. An order by the Government suspending him from service passed after 30-1-73 and during the period when he was enjoying 6 months preparatory leave cannot be held as an order passed when the servant was in the Government service. Therefore such order passed treating him in service is ineffective and unlawful, Syed Abdul Ali vs Ministry of Cabinent Affairs, Established Division 31 DLR (AD) 256. Where the dismissal order was set aside on ground of procedural irregularity, the authority is competent to hold a de novo enquiry into the charge, AIR 1962 (SC) 1334; 1981 SLR 656. Where a Government Servant was warned on some charge but subsequently the punishing authority reopened the same charge and passed some other punishment, it was held that such Government servant could not be punished for the second time for the same charge. 1982(1) SLR 212(Punjab). Government Servants (Discipline and Appeal) Rules, 1985 Rule 8(a) Rule 8(a) provides that if the concerned authority is satisfied that the accused would be suspended or dismissed from the service for the reasons of conviction of criminal charge, then the provision of Rules 6 and 7 shall not apply to give the opportunity to the applicant, but in rule 8(b) it has been mentioned that if the concerned authority thinks that the service of the notice upon the person against proceeding has been initiated is not practicable in that case the authority must record the reasons in writing. The authority did not record any such reason for non serving of the notice upon the applicant. The petitioner has been dismissed without getting any opportunity of being heard, which is an absolute violation of the principle of natural justice. [73 DLR (AD) (2021) 214] Government Servants (Discipline and Appeal) Rules, 1985 Rule 7(5) Second show cause notice had been issued upon the petitioner. But along with the second show cause notice, no copy of inquiry report had been attached, which is the violation of Rule 7(5) of the Rules, 1985. Rule 7(5) provides that the authority would communicate the - applicant with the copy of inquiry report with their decision thereof. But this provision has been violated in the case and the case was heard ex-parte. ..(12) [73 DLR (AD) (2021) 214] Government Servants (Discipline and Appeal) Rules, 1985 Rule 10 The inquiry proceeding was held ex-parte, which was not in accordance with law. At the same time the petitioner was not given opportunity to cross-examine the witnesses of to produce evidence in his favour according to Rule 10 of the Rules, 1985. [73 DLR (AD) (2021) 214] House Rent Control Act, 1991 Rent Control Ordinance [XI of 1963] Section 19 read with Baribhara Niyantron Ain [III of 1991] Section 19 Deposit of rent with the rent controller depends upon certain contingencies and unless those contingencies arise a tenant is not entitled to deposit rent with the Rent Controller. The High Court Division held that the provision of section 19 of the premises a Control Ordinance, 1963 and provision section 19 of Baribhara Niyantron Ain, 1991 are almost same. There are some contingencies attached to the provisions section 18-19 of the Baribhara Niyantran Ain, 1991. The petitioner has failed to establish any of the contingencies upon which he would be allowed to deposit the rent with Rent Controller. In absence of any such contingencies there is no scope to allow a tenant to deposit the rent with Rent Controller. In that view of the matter, the High Court Division does not find illegality in the impugned judgment and order and Rule has got no merit. In the result, the Rule is discharged..(11 & 12) [2022] 24 ALR (HCD) 39 Income Tax Ordinance (XXXVI of 1984) Income Tax Ordinance (XXXVI of 1984) 6th Schedule, Part-A, Paragraph-I Income-Any income derived from property, including a business undertaking of a charitable trust or legal obligation is exempted from taxation for the relevant assessment year. ...(24) Interpretation of Statute Explanation-Explanation is not a substantive provision in any sense of the term, but it is used to explain the meaning, to clarify, to facilitate the proper understanding of a provision, neither it enlarge the scope of the original provision, nor it is used to limit the scope the provision, in other words, it does not either restrict or extend the scope of the enacting part. ....(30) [ Proshika vs Commissioner of Taxes, 73 DLR 7] Limitation Act, 1908 Section 5 The expression "sufficient cause" should, be considered with pragmatism in justice- oriented approach rather than the technical detection of "sufficient cause" for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and require adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merit unless the case is hopelessly without merit. No separate standards to determine the cause laid by the Government vis-a-vis private litigant could be laid to prove strict standards of "sufficient cause". Bangladesh vs Abdur Sobhan [73 DLR (AD) 1] Limitation Act (ix of 1908) Section 5 The individual would always be quick in taking the decision whether he would pursue the remedy by way of an application since he is a person legally injured while the State is impersonal machinery working through its officers or servants. Bangladesh vs Abdur Sobhan [73 DLR (AD) 1] Limitation Act (IX of 1908) Section 5 There is gainsaying that the no Government decisions are taken by officers’ agencies proverbially at a slow pace and encumbered process of pushing the files from 1 table to table and keeping it on the table for considerable time causing delay, intentional or otherwise, is a routine. Considerable delay of procedural red tape on the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. Bangladesh vs Abdur Sobhan [73 DLR (AD) 1] An ex parte order admitting a time barred appeal is subject to reconsideration at the hearing of the appeal at the respondent's instance because such an order made in the absence of the respondent and without notice to him purports to deprive him of a valuable right, for, it put in peril the finality of the decision in his favour and if he is precluded from questioning its propriety it would amount to a denial of justice. "It must, therefore, in common fairness be regarded", their Lordships said, "a tacit term of an order (admitting time barred appeal ex parte) that though unqualified in expression it should be open to reconsideration at the instance of the party prejudicially affected; and this view is sanctioned by the practice of the courts in India. 46 DLR (AD) (1994) 13 Limitation Act (IX of 1908) Section 119 In order to obtain a declaration that an adoption is valid the suit must be filed within six years from the date when the rights of the adopted son. [73 DLR (AD) 256] Adverse possession If the possession is actual, open, uninterrupted, notorious, exclusive and continuous over a statutory period, it confers an indefeasible title upon the possessor. The extent of the title acquired by adverse possession depends on the extent of the claim or right under which possession is obtained and kept. To constitute possession in the claim of the possessor must be effectively realised in the facts. It is sufficient if the possession is overt without any attempt of concealment. That possession to the extent to which it is capable of demonstration must be hostile, notorious and exclusive to make it adverse, and will only extend to the land in actual occupation of the wrong doer. All these elements of hostile possession are present in this case and the defendant has been able to prove it by ora and documentary evidence. The trial court has rightly held the extinguishment of plaintiffs title by adverse possession. The Appellate Division held that admittedly the defendant in assertion of his right has mutated his name and has been paying rent to the government and possessing the suit land to the knowledge of the plaintiffs since 1974 claiming as owner. This possession of the defendant in assertion of his right is no doubt to be treated as hostile possession to the knowledge of the true owners. The plaintiffs are totally silent why they did not take any step for eviction of the defendant had he been a borgader under them even after knowing that the defendant has mutated his name in the record-of- right and has been paying rent. Therefore, the court of appeal below wrongly disbelieved the claim of adverse possession by the defendant or in the alternative, it t can be said that the court of appeal below has failed to comprehend the accrual of title by adverse possession in a disputed land. The High Court Division committed similar error in affirming that judgment. The defendant has been possessing the suit land as of right adversely to the knowledge of the plaintiffs for 20 years. He has mutated his name and has been paying rent throughout this period. If this act of possession in assertion of right is not matured into title, what else will create title by adverse possession? Therefore, the trial court is perfectly justified in dismissing the suit. The High Court Division has totally overlooked the facts proved by the in support of his claim of hostile possession and on misconception of law it has affirmed the judgment of the court of appeal below. The case considered by the High Court Division squarely supports the case of the defendant. The High Court Division misconstrued the decision in failing to consider that in that case, it has been held that if there is a complete ouster by asserting hostile title, the plaintiff's title is extinguished, inasmuch as, he has lost his title by the acts of the defendant who having been in possession denying the plaintiff's title openly. The appeal, is therefore, allowed. [2022] 25 ALR (AD) 50 Muslim Family Laws Ordinance, 1961 Sections 1–4 & 6(5)– In the absence of documentation of permission obtained by the accused–respondent from Arbitration Council the inevitable conclusion is that the accused¬respondent entered contract for second marriage without previous permission of Arbitration Council and offence under section 6(5) of The Ordinance 1961 had been committed and he may be fastened with guilt and complainant–appellant could successfully bring home charge against accused–respondent to the hilt. Dilruba Aktar vs AHM Mohsin 55 DLR 568. Section 4– Succession–The date of death of the daughter of the propositus, whether it was before or after the coming into force of the Ordinance, is immaterial. It is the date of opening of succession which is of material importance. Sheikh Ibrahim vs Nazma Begum44 DLR (AD) 276. Section 5(e)— Guardianship and Custody of Children—Admittedly since 5-4-2009, children are in custody to the plaintiff and there is no allegation against their welfare. It is true that in Muslim Law father if alive is the natural guardian of the persons and property of his minor child. He does not require an order of the Court to support his right to act as guardian in any matter, but when the Court is satisfied that it is for welfare of children that an order should be made for their custody the Court may make an order accordingly. In such view of facts, the parties were directed to maintain status quo in respect of custody of children. Abdul Quddus vs Syed Moinul Ahsan Sajjad 16 BLC 166. Section 7— The provision of section 7(1) of the Ordinance of 1961 only provides for giving a notice of Talaq to the Chairman and a copy thereof to the wife and sub-section 2 of section 7 makes the position further clear by providing a punishment for contravention of provisions of sub-section (1) of section 7. The only implement to immediate effectiveness of the divorce is information to the Chairman and the forming of the Conciliation Council. From the alone provision of law it is clear that the mere absence of communication of divorce notice to the Chairman under section 7(1) of the Ordinance, 1961 does not make the divorce invalid. Nurul Islam vs Nur Ayesha Begum 16 BLC 10. Section 7— Consistent view of the superior court is that non-compliance of provision of section 7 will render divorce ineffective. Unless there was compliance of section 7, which is a mandatory provision of law, no divorce can be effective as per section 7 of the Muslim Family Laws Ordinance. Nur Nabi vs Salima Akhter Doly 13 BLC 327. Sections 5 & 7– Muslim Marriage is a social contract and not a sacrament between a man and woman followed by recitations from the Holy Quran. The relationship between the spouses is based on the concepts of social justice and adjustments. Khodeja Begum & others vs Md Sadeq Sarkar 50 DLR 181. Sections 6 & 7– Talaq in any form shall not stand effective and Talaq shall be not Talaq in the eye of law unless provision contained in section 7(1) is sternly complied with and in the event of subsistence of existing marriage no man can enter into second marriage and if he enters he shall contribute himself to be punished under section 6(5) of The Ordinance. Dilruba Aktar vs AHM Mohsin 55 DLR 568. Section 6(5)– Procedure which must be already followed when a husband having a wife, wants to contract a fresh marriage. Makbul Ali vs Manwara Begum 39 DLR 181. Section 6(5)– The woman who is married by the husband without permission, during the existence of other wife not liable for any offence. Makbul Ali vs Manwara Begum 39 DLR 181. Section 6(5)– The plea of the husband taken at revisional stage that there was no Union Parishad or Chairman to seek permission for second marriage at the relevant time cannot be sustained in the absence of any evidence. Mizanur Rahman vs Surma Khatun 50 DLR 559. Section 6(5)– The offence under section 6(5) of the Ordinance compoundable, though not the appellant and the respondent having arrived at a compromise, dismissal of the appeal upon reduction of the sentence to the extent of the period already served merits consideration. Khandaker Abdul Hannan vs Sayara Begum 56 DLR (AD) 141. Section 6(5)(b)– Administrators of Union Panchayet, Shahar Committees and Pourashavas took over the functions of the Muslim Family Laws Ordinance from 20–11–72. Ayesha Sultana vs Shahajahan Ali 38 DLR 140. Section 6(5)(b)– Marrying a 2nd wife without permission of an arbitration council, violates law and punishable. Ayesha Sultana vs Shahajahan Ali 38 DLR 140. Section 6(5)(6)– When a wife is present: resort to polygamy by taking a 2nd wife can only be bad, when permission thereof is given in writing by the Arbitration Council. Abul Bashar vs Nurun Nabi 39 DLR 333. S. 7—A Nikah Registrar is a public servant— The mere fact that the Nikah registrar is remunerated by fees to be received from the parlies docs not pre¬vent his becoming a public servant if he is other¬wise discharging a public duty Compulsory registration of marriages provided for by the Ordinance is clearly a public duty under¬taken by the Government. A Nikah registrar is also a person charged with the duty of making and au¬thenticating documents and registers necessary for the ascertainment of the rights of people within the meaning of the tenth clause of section 21 of the P.P. Code. So, the Nikah Registrar under the Mus¬lim Family Laws Ordinance is a public servant within the meaning of the said clause. Muhammad Arif Vs. Md. Kawshar Ali, (1969) 21 DLR (SC) 330. Section 7– Divorce–Non–service of notice to the Chairman of the Union Parishad under the provision of this section cannot render ineffective divorce disclosed in an affidavit. Sirajul Islam vs Helana Begum and others 48 DLR 48. Section 7(1)– Talaq pronounced by the wife must be communicated to the husband. When the communication is over and the husband admits to have received the same, the requirement of section 7(1) of the Ordinance 1961 was complied and the talaq–e–tawfiz became effective. Sherin Akther and another vs Md Ismail 51DLR512. Section 9– Post maintenance–the court has the jurisdiction to pass decree for post maintenance in an appropriate case. Sirajul Islam vs Helana Begum and others 48 DLR 48. Muslim Family Laws Ordinance, 1961— Accused contracted a second marriage on 17 .8. 75 during the subsistence of an existing marriage — After the dissolution of Local Bodies by P.O.7 of 1972 no amendment in the definition of "Arbitra¬tion Council", "Chairman" and "Union Council" having been made and no person having been appointed to discharge the function of the Chairman under the Ordinance, Sections 6 and 7 of the Ordinance have been rendered nugatory — There was no competent authority from whom the accused was required to take permission for the second marriage and as such he cannot be convicted of an offence U/S 6( 5) of the Ordinance — The Muslim Family Laws Ordinance (VIII of 1961) Ss. 2, 6 and 7 - The Bangladesh Local Councils and Municipal Commi¬ttees (Dissolution and Administration) Order (P.0.7 of 1972), Arts .3 and 6 Farooque Mia Vs. Tahera liegum I BLD (HCD) 163. Punishment for polygamy — When to be awarded — For awarding punishment for polygamy a finding as to the absence of the previous permission of the Arbitration Council is necessary — Muslim Family Laws Ordinance 1961, (VIII of 1961) S 6 Abul Basher Vs Nurul Nabi others 8 BLD (HCD) 189 Ref. ll)83 BCR (HCD) 239. Maintenance of minor sons, who have been living with the mother in the house of the maternal grandfather - Under the Muslim Law the father is a natural guardian for the minor sons above age of seven years and, in a case where the father, during the life time of the children’s mother, is in the habit of talcing wife after wife, this situation may change when the question of option of the minor sons comes into play and the paramount consideration is welfare of the minor. Even if the children prefer to live with the mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. If the father objects to the custody of the children and want to assert his own legal right, the proper course for the father would be to apply for his custody, but so long as the custody of the children remains with the mother, he cannot on any plea refuse to pay maintenance for the children. (Para-6) Bazlur Rahman Sikder Vs. Mrs. Tahera Begum Shamima 6 BLT (HCD)-191 Section-7 Validity of the Divorce - Mere non-service of notice upon the chairman of the union council under section 7 of the Muslim Family Law Ordinance cannot render the divorce ineffective if the conduct of the husband appears to be so. [Para-12] Md. Sirajul Islam Vs Mosammet Helena Begum & Ors 3BLT (HCD)-40 Section-9 Regarding the past maintenance - There is no provision for past maintenance in the Ordinance of 1961 and 1985, But in the instant case, it appears that for not fault of the opposite party (wife) the petitioner was neglecting and refusing to maintain her since 2 years before the institution of the suit—the court has the jurisdiction to pass a decree for past maintenance in an appropriate case like the instant one. [Paras-16 & 17] Md. Sirajul Islam Vs Mosammet Helena Begum & Ors 3 BLT (HCD)-40 Whether Muslim women could have claimed maintenance beyond the period of iddat - Qur-an directs a woman who is divorced to undergo a period of iddat elsewhere and herein Qur-an directs a man to give maintenance in case he divorces his wife — a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the period of iddat, till she loses the status of a divorce by remarrying another person. [Paras - 18 & 19] Hefzur Rahman Vs. S. Nahar & Ors 3 BLT (HCD)-49 Whether pronounced talaq by swearing an Affidavit is a valid talaq in the eye of law as no notice to the Chairman of the Union Council was served Section 7 (1) of the Ordinance provides for giving of notice of talaq to the Chairman and a copy thereof to the wife and provides for punishment for contravention and this law overrides any other provision of any other law. But there being clear intention to divorce by the Affidavit on the part of the petitioner and the same having been disclosed and produced before the lower appellate court by the petitioner himself. The petitioner cannot take advantage of his own wrong and cannot claim the benefit of non-service of notice by him to the Chairman. He is bound by his admission. Payment of dower being obligatory as per Nikahnama the wife is entitied to the same on talaq. [Para-8] Md. Serajul Islam Vs. Most. Helena Begurn & Ors 7BLT (AD)-137 Maintenance—Muslim Women—in the light of the Holy Quran Per ATM Afzal, CJ : Relying on Sura At-Talaq, verse 6(65:6); and opening verse of Sura AtTalaq (65:1) Held : There is a clear direction in respect of a pregnant woman who has been divorced and the direction is to bear her expenses till she has delivered. In the previous verse it has been stated that in the case of a pregnant woman her period of Iddat will be till delivery. It is therefore apparent that the maintenance has been related to the period of Iddat. The interpretation given by the learned Judges is thus apparently in conflict of the aforesaid verse—from the above, it is clear that the interpretation given by the learned Judges is not and cannot be acceptable because it brings conflict and even on the general criterion of interpretation as they also would not deny that a document should be read as a whole, the interpretation of the learned Judges must be rejected. [Paras-39 & 40] Per Mustafa Kamal, J : The relevant Suras and Ayats of the Holy Quran on iddat, reconciliation, maintenance and mata’ a after pronouncement of talaq are to be found in Sura Al-Baqarah 12:228, 237, 241J, Sura At-Talaq [65: 1-6], SuraAl-Ahzab 33:49 and Sura Al-Nissa 14:351. The Holy Quran divides divorced women into 6 categories— Separate provisions have been made in the Holy Quran for no or separate periods of iddats and maintenance for each of the above categories of divorced women [Paras-10l & 102] Per Latifur Rahman, J: In the Holy Quran there is no clear direction for payment of maintenance to a divorced woman. Verse 228 of Surah Baqarah translated in Bengali reads as follows: “EBOND TALAK PRAPYOGON NIJEDER TIN RITU PORJONTO OPEKKHA KORBE” - This is a direction of Allah as contained in the Holy Quran. Iddat is a period of waiting. After divorce the marriage tie between the husband and wife is dissolved and after the dissolution of marriage there remains no obligation between the parties outside the contract of marriage, but due to the period of iddat outside the contract of marriage an obligation for payment of maintenance has been created according to Muslim Law .... There being no direction of payment of maintenance during the period of “Iddat” in the Holy Quran, one is bound to follow the other sources of Islamic law for a guidance on the question of granting of maintenance to a divorced woman, [Paras- 1 50& 155] M. Hefzur Rahman Vs. Shamsun Nahar Begum & Ors. 7 BLT (AD)-33. Section 4— When the proviso to section 4 gave unlimited power to the Government to extend, curtail or alter the limits of any area, the sub-rule 1 of rule 10 cannot be said to be mandatory. This is merely directory. Nur Mohammad Fakir vs Bangladesh 50 DLR 71. Section 6(5)— The plea of the husband taken at revisional stage that there was no Union Parishad or Chairman to seek permission for second marriage at the relevant time cannot be sustained in the absence of any evidence. Mizanur Rahman vs Surma Khatun 50 DLR 559 Section 7— A divorce under the Ordinance is not a unilateral act, rather it involves a public authority in the matter. It precludes a divorce or talaq from being effective for a period of ninety days from the date of the receipt of the notice by the Chairman. Consequently, the marital status of the parties will not in any way change during that period. The parties in law will continue to remain husband and wife till the divorce is confirmed. Safiqul Islam and others vs State 46 DLR 700. Section 7— Ninety days' reconcilia¬tion period is to start from the date of the receipt of the notice by the Chairman and not from the date when it was written. Safiqul Islam and others vs State 46 DLR, 700. Section 7, 25(1) Admittedly appellant No.l Abdul Jalil of Civil Appeal Nos. 56, 57 and 58 of 1995 and appellant Mrs. Sharon Laily Begum Jalil of Civil Appeal No.l 59 of 1995 were man and wife and the latter having been divorced by the former in the month of May, 1995 following a breakdown of marital relations, the question of custody of their four minor childern, namely, Mohammad Nurul Alam Jalil (born on 23.4.1985), Jasmin Akhter Jalil (born on 8.9.1988), Sharlean Akhter. It is now settled that the term 'welfare' must be read in the largest possible sense as meaning that every circum-stance must be taken into consideration and the Court must do what under the circumstances a wise parent acting for the true interests of the child would do or ought to do. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can ties of affection be disregarded vide queen vs. Gyngall (1893) 2 QBD 232; Walter vs. Walter 55 Cal 730; Saraswathi Vs. Dhanakoti 48 Mad 299. Abdul Jalil and others vs. Mrs. Sharon Laily Begum Jalil(A.T.M. Afzal CJ) (Civil) 4 ADC 8 Muslim Family Laws Ordinance, 1961, is applicable only to the Muslims professing Islam as their faith and it does not apply to followers of other religions. Application of the Muslim Family Laws Ordinance has been overridden by Section 3 of the Family Courts Ordinance, 1985, in clear language providing that this Ordinance shall have effect notwithstanding anything contained in any other law. Nirmal Kanti Das Vs. Sreemati Biva Rani, 14 BLD(HCD)413 Sections—5 and 7 Registration of marriage and Talaq The Muslim Marriage is a social contract and not a sacrament between a man and woman followed by recitations from the Holy Quran. The relationship between the spouses is based on the concepts of social justice and adjustments. But if due to any reason love is lost between the parties, the husband is at liberty to divorce his wife by exercising his right of talaq. But such a right is not available to the wife unless she is given the delegated power of divorce by way of talaq-e-tawfiz. A wife thus cannot dissolve the marriage even through the intervention of the Court. Khodeja Begum and others Vs. Md. Sadeq Sarkar, 18 BLD (HCD) 31. Section—6 Polygamy The discussion on polygamy in Islam and recommendation thereon as accorded in the impugned judgment should be taken to be deleted lest it may create confusion in the mind of the subordinate Courts and the people at large. It was totally unnecessary for the learned Judges to indulge in the discussion on polygamy in Islam which was neither an issue in the suit nor required to be decided in the context of the pleadings of the parties. The exercise undertaken by the learned Judges was not only gratuitous but wholly illegal being not within their jurisdiction under the Code of Civil Procedure. Md. Elias Vs Jesmin Sultana, 19 BLD (AD)122. Ref: 17BLD( 1997)04—Cited. Section—6 Polygamy Section 6 of the Ordinance prohibits contracting or performing second marriage during the subsistence of the existing one, except with the previous permission of the Arbitration Council. This section does not declare a second marriage, without such permission, void or illegal. Muslim Jurists and Scholars are almost unanimous in taking the view that in the context of modern society it is virtually impossible to be able to ‘deal with the wives justly’ and as such the Quranic sanction for taking a second wife under specified conditions virtually amounts to a prohibition in taking a second wife during the subsistence of an existing marriage. Viewed in this context, the High Court Division held that section 6 of the Muslim Family Laws Ordinance is against the principle of Islamic Law and if should be repealed. Jesmin Sultana Vs Mohammad Elias, 17 BLD (HCD) 4. Ref: (1996) 16 BLD 396;—Cited. Section—6 Payment of dower being obligatory as per Nikahnama the wife is entitled to the same on talaq. Md. Serajul Islam Vs Most. Helana Begum and others, 19 BLD (AD) 150. Section—7 Validity of a divorce without notice to the Chairman Mere non-service of notice upon the Chairman of the Union Council as required under Section 7 of the Ordinance does not render the divorce necessarily ineffective if divorce is established by the conduct of the husband. Md.Sirajul islam Vs. Mosammat Helana Begum, 16 BLD (HCD) 477 . Section—7(1) Section 7(1) of the Ordinance provides for giving of notice of talaq to the Chairman and a copy thereof to the wife and provides for punishment for contravention and this law overrides any other provision of any other law But there being clear intention to divorce by the affidavit on the part of the petitioner and the same having been disclosed and produced before the lower appellate Court by the petitioner himself, the petitioner cannot take advantage of his own wrong and cannot claim the benefit of non-service of notice by him to the Chairman, he is bound by his admission. Md. Serajul Islam Vs Most. Helana Begum and others, 19 BLD (AD) 150. Ref: Muslim Marriages and Divorces (Registration) Act, 1974 (LII of 1974) Section—7(1) Talaq pronounced by the wife must be communicated to the husband. When the communication is over and the husband admits to have received the same, the requirement of sub-section (1) of section 7 of the Ordinance has been duly complied with and the talaq-e-tawfiz became effective. Mrs. Sherin Akhter and another Vs Al. Haj Md. Ismail, 20 BLD (HCD) 159. Ref: 15 DLR(SC)9; 16 BLD(HCD)477: 48 DLR 48; PLD 1984 Lahore 124—Cited. Maintenance minor sons, who have been living with the mother in the house of the maternal grandfather Under the Muslim Law the father is a natural guardian for the minor sons above age of seven years and, in a case where the father, during the life time of the children’s mother, is in the habit of taking wife after wife, this situation may change when the question of option of the minor sons comes into play and the paramount consideration is welfare of the minor. Even if the children prefer to live with the mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. If the father objects to the custody of the children and want to assert his own legal right, the proper course for the father would be to apply for his custody, but so long as the custody of the children remains with the mother, he cannot on any plea refuse to pay maintenance for the children. Bazlur Rahman Sikder Vs. Mrs. Tahera Begum Shamima 6BLT (HCD)-191 Section 6 & 7 A close reading of section 6 and 7 of The Ordinance 1961 manifestly demonstrates that a Talaq in any form shall not stand effective and Talaq shall be no Talak in the eye of law unless provision contained in section 7(1) is sternly compiled with and marriage between husband and wife shall subsist and in the event of subsistence of existing marriage no man can enter into second marriage with a woman and if he enters second marriage he shall contribute himself to be punished under section 6(5) of The Ordinance. Dilruba Aktar Vs. A H Mohammad Mohsin. 11 BLT (HCD)-447 Subsection 5(b) of Section 6 read with Penal Code, 1860 Section-64 In subsection 5(b) of Section 6 of The Ordinance of 1961 provision of fine had been provided hut no consequence has been supplied in the event of default of payment of fine. In the absence of any consequence following nonpayment of fine, the imposition of fine becomes superfluous. This legal flaw perhaps went unnoticed by Lawmakers at the time of giving effect to certain recommendations of the commission of Marriage and Family Laws. The Ordinance of 1961 though is a special law, Laws engrafted The Penal Code can be pressed in aid of the flaw cropped up in subsection 5(b) of The Ordinance of 1961. Section 64 of The Penal Code can be pressed into service in the matter. Dilruba Aktar Vs. A H Mohammad Mohsin 11 BLT (HCD)-447 Section—7 Legal value of hearsay evidence The High Court Division held that some respectable persons including Chairman were present at the time of the divorce and the same was taken place with the agreement of both the parties accepting the divorce and that Ismail Shaikh again married one Abiron of village Radhaballav and started to live there until his death and accordingly discharged the rule holding that the plaintiffs son of Ismail Shaikh is not entitled. to get .081/4 acre of land left by Kanchan Bewa due to earlier divorced by Ismail Shaikh. Md. Rabia Shaikh Vs. Md. Abdus Shobahan and Ors. 13 BLT (AD)164 Section-7 Validity of the Divorce Mere non-service of notice upon the chairman of the union council under section 7 of the Muslim Family Law Ordinance cannot render the divorce ineffective if the conduct of the husband appears to be so. Md. Sirajul Islam Vs Mosammet Helena Begum & Ors. 3BLT (HCD)-40 Section-7(1) In this case, as the notice of talak was given on 02.03.1989 to the Administrator, Dhaka City Corporation and also to the petitioner talak has on expiry of 90 days from the date of receipt of notice by the Administrator has taken effect as provided in sub-section (3) of Section-7 of the Ordinance. Md. Ataul Hoque Vs. Anwar A. Karim 8 BLT (AD)-30 Section-7(1) Talak was pronounced on 08.09.1999 whereas the notice served on 14.01.1999 to the complainant but notice is to be served upon the chairman of the Arbitration Council concerned—there was not legal divorce on 14.11.999. Md. Giasuddin Khan Vs. Miss Beauty Begum & Ors. 8BLT (FICD)-328 Section-9 Regarding the past maintenance There is no provision for past maintenance in the Ordinance of 1961 and 1985. But in the instant case, it appears that for not fault of the opposite party (wife) the petitioner was neglecting and refusing to maintain her since 2 years before the institution of the suit— the court has the jurisdiction to pass a decree for past maintenance in an appropriate case like the instant one. Md. Sirajul Islam Vs Mosammet Helena Begum & Ors. 3BLT (HCD)-40 Whether a Muslim women could have claimed maintenance beyond the period of iddat. Quran directs a woman who is divorced to undergo a period of iddat elsewhere and herein Quran directs a man to give maintenance in case he divorces his wife — a person after divorcing his wife, is bound to maintain her on a reasonable scale beyond the period of iddat, till she loses the status of a divorce by remarrying another person. Hefzur Rahman Vs. S. Nahar & Ors. 3BLT (HCD)-49 Whether pronounced talaq by swearing an Affidavit is a valid talaq in the eye of law as no notice to the Chairman of the Union Council was served Section 7 (1) of the Ordinance provides for giving of notice of talaq to the Chairman and a copy thereof to the wife and provides for punishment for contravention and this law overrides any other provision of any other law. But there being clear intention to divorce by the Affidavit on the part of the petitioner and the same having been disclosed and produced before the lower appellate court by the petitioner himself. The petitioner cannot take advantage of his own wrong and cannot claim the benefit of non-service of notice by him to the Chairman. He is bound by his admission. Payment of dower being obligatory as per Nikahnama the wife is entitled to the same on talaq. Md. Serajul Islam Vs. Most Helena Begum & Ors. 7BLT(AD)-137 Maintenance—Muslim Women—in the light of the Holy Quran Per ATM Afzal, CJ: Relying on Sura At-Talaq, verse 6(65:6); and opening verse of Sura At-Talaq (65:1) Held : There is a clear direction in respect of a pregnant woman who has been divorced and the direction is to bear her expenses till she has delivered. In the previous verse it has been stated that in the case of a pregnant woman her period of Iddat will be till delivery. It is therefore apparent that the maintenance has been related to the period of Iddat. The interpretation given by the learned Judges is thus apparently in conflict of the aforesaid verse—from the above, it is clear that the interpretation given by the learned Judges is not and cannot be acceptable because it brings conflict and even on the general criterion of interpretation as they also would not deny that a document should be read as a whole, the interpretation of the learned Judges must be rejected. M. Hefzur Rahman Vs. Shamsun Nahar Begum & Ors. 7BLT (AD)-33 Per Mustafa Kamal, J : The relevant Suras and Ayats of the Holy Quran on iddat, reconciliation, maintenance and mata a after pronouncement of talaq are to be found in Sura Al-Baqarah 12:228, 237, 241], Sura At Talaq [65 : 1-61, Sura-Al-Ahzab 33:49 and Sura Al-Nissa [4:35]. The Holy Quran divides divorced women into 6 categories— Separate provisions have been made in the Holy Quran for no or separate periods of iddats and maintenance for each of the above categories of divorced women M. Hefzur Rahman Vs. Shamsun Nahar Begum & Ors. 7BLT (AD)-33 Per Latifur Rahman, J: In the Holy Quran there is no clear direction for payment of maintenance to a divorced woman. Verse 228 of Surah Baqarah translated in Bengali reads as follows: “এবং তালাক প্রাপ্তগণ নিজেদের জন্য তিন ঋতু পর্যন্ত অপেক্ষা করবে।” This is a direction of Allah as contained in the Holy Quran. Iddat is a period of waiting, After divorce the marriage tie between the husband and wife is dissolved and after the dissolution of marriage there remains no obligation between the parties outside the contract of marriage, but due to the period of iddat outside the contract of marriage an obligation for payment of maintenance has been created according to Muslim Law.... There being no direction of payment of maintenance during the period of “Iddat” in the Holy Quran, one is bound to follow the other sources of Islamic law for a guidance on the question of granting of maintenance to a divorced woman. M. Hefzur Rahman Vs Shamsun Nahar Begum & Ors. 7BLT (AD)-33 Marriage within 90 days-effect A marriage with another man followed by a divorce by the husband, if takes place in violation of provisions of section 7 of Ordinance which enacts that the marriage between the divorced woman and her former husband shall subsist for a period of 90 days, will not be a valid and lawful marriage. Sayed Ali Newaz Gardezi vs Lt. Col. Md. Yusuf 15 DLR (SC) 9= PLD (1963) SC 51. Divorce and marriage within 90 days-void The position that emerges, therefore, is that the respondent was guilty of enticing or taking away Christa Renate, when she was still the lawful-wedded wife of the complainant, from the latter`s house and he, therefore, committed an offense which falls within the purview of section 498, PPC. The circumstances point to the inference that he knew her to be the wife the appellant at the relevant time. The intention to "marry" her, had no genuine basis as he must have known that there was no legal separation between her and her first husband and no marriage ceremony, even if gone through, could wipe out that fact from his consciousness. The subsequent marriage, in the circumstances, must be regarded merely as a disingenuous device to put up a facade of respectability over an illegal union. Sayed Ali Newaz Gardezi vs Lt. Col. Md. Yusuf 15 DLR (SC) 9= PLD (1963) SC 51. [post_ads] Section-7 Ninety days` reconciliation period is to start from the date of the receipt of the notice by the Chairman, and not from the date when it was written. Shafiqul Islam & others vs State 46 DLR 700. Section-7 A divorce under the Ordinance is not a unilateral act, rather it involves a public authority in the matter. It precludes a divorce or talaq from being effective for a period of ninety days` from the date of the receipt of the notice by the Chairman. Consequently, the marital status of the parties will not in any way change during that period. The parties in law will continue to remain husband and wife till the divorce is confirmed. Shafiqul Islam & others vs State 46 DLR 700. Section 7- Talaq Function of the Arbitration Councils and their scope under the Ordinance- It will appear that while a party has to `apply` to the Chairman for matter dealt with in sections 6 and 9 of the Muslim Family Laws Ordinance, section 7 requires only a notice of a talaq to be given to the Chairman. It will further appear that section 7 requires the Arbitration Council neither to decide nor to determine anything upon such notice, though section 6 requires the Arbitration Council to 'decide' a husband's application for permission to contract another marriage during the subsistence of an existing marriage and record reasons for its 'decision' and section 9 requires the Arbitration Council to determine the matter upon an application by a wife for maintenance. It will also appear that although sub-section (4) of section 7 provides that within thirty days of the receipt of written notice of pronouncement of a talaq the Chairman is required to constitute an Arbitration Council which is to take all steps necessary for reconciliation, nothing has been said in the section or anywhere else in the Act providing as to what will happen if upon receipt of such a written notice of the talaq the Chairman does not constitute an arbitration council and does not take any steps to bring about reconciliation between the parties. Failure of the Chairman to constitute an arbitration council or that of a duly constituted arbitration council to take necessary steps to bring about reconciliation is thus inconsequential. Abdus Sobhan Sarkar vs Md Abdul Ghani, 25 DLR 227. Section 7—Divorce— Non-service of notice to the Chairman of the Union Parishad under the provision of this section cannot render ineffective divorce disclosed in an affidavit. Sirajul Islam vs Helana Begum and others 48 DLR 48. Divorce- Non-service of notice to the Chairman of the Union Parishad under the provision of this section cannot render ineffective divorce disclosed in an affidavit. Sirajul Islam vs Helena Begum 48 DLR 48. Sections 7 & 5- Muslim Marriage is a social contract and not a sacrament between a man and woman followed by recitations from the Holy Quran. The relationship between the spouses is based on the concepts of social justice and adjustments. Khodeja Begum & others vs Md Sadec Sarkar 50 DLR 181. Sections 7 & 6- Talaq in any form shall not stand effective and Talaq shall be not Talak in the eye of law unless provision contained in section 7(1) is sternly complied with and in the event of subsistence of existing marriage no man can enter into second marriage and if he enters he shall contribute himself to be punished under section 6(5) of the Ordinance. Dilruba Aktar vs AHM Mohsin 55 DLR 568. Sections 7 & 8- Dissolution of marriage, suit for- Ordinance does not oust the jurisdiction of Civil Court to adjudicate on such matter. The wife filed a suit in the Civil Court for dissolution of her marriage on the ground that she has exercised her option of puberty. It was contended that the suit was not triable by the Civil Court in view of the provisions of section 8 read with section 7 of the Muslim Family Laws Ordinance. Held-There is nothing in the Muslim Family Laws Ordinance which could be construed as amounting to ouster of jurisdiction of the Civil Court. The ordinary Civil Courts have jurisdiction to try suits for dissolution of marriage. A suit based on a ground of Khair-ul-Baloogh (exercise of the option of puberty) is essentially a suit for dissolution of marriage and it cannot be contended that such a declaratory suit for dissolution of marriage on the ground of option of puberty (under section 2, clause (vii) of the Dissolution of Muslim Marriage Act) is not triable by the Civil Court. The suit was filed for dissolution of marriage on two grounds, i.e. on the ground of 'Khula' as also on the grounds of exercise of option of puberty. It was found that so far as the claim for dissolution of the marriage on the ground of khula was concerned it was not triable by the Civil Court and it was thereupon contended that the suit as a whole must fail. Held-Since the suit is maintainable on the other ground, namely, exercise of the option of puberty, it cannot be thrown out as incompetent on one of the several grounds. Md Amin vs Mst Surraya Begum, 21 DLR (WP) 253. Section 7(1)- Talaq pronounced by the wife must be communicated to the husband. When the communication is over and the husband admits to have received the same, the requirement of section 7(1) of the Ordinance, 1961 was complied and the talaq-e-tawfiz became effective. Sherin Akther and another vs Md Ismail 51 DLR 512. Section 7(1)(3)-Divorce- To effect a legal divorce, section 7(1)(3) must be complied with- The question arose whether the deed of divorce, even if held to be genuine, would operate as a valid divorce under the Shia Law and further in view of the fact that the alleged divorce having taken place on 16-11-61, whether the marriage of the divorced woman alleged to have been held on 2-12- 62 was valid under provisions of section 7 of the Ordinance. Held-Talaq bidaat is not recognized as valid by Shia Law. According to Shia doctors, a talaq amongst the Shias for the purpose of bringing about a dissolution of marriage, must be orally pronounced by the husband, in the presence of two witnesses and the wife, in a set form of Arabic words. A written divorce amongst the Shias is not recognized, except in certain circumstances. Sayed Ali Newaz Gardezi vs Lt. Col. Md Yusuf 15 DLR (SC) 9. No notice under section 7(1)— No talaq- Unless the provisions of section 7(1), Muslim Family Laws Ordinance are complied with regarding service of notice to the Chairman of Union Council a talaq would fail to operate. Therefore the talaq being dated 16-11-61 cannot free a woman to marry a man on 21-12-62, the provisions of section 7(1) standing on the way. Sayed Ali Newaz Gardezi vs Lt. Col. Md Yusuf 15 DLR (SC) 9. Provisions of section 7 are applicable even where one of the parties to the marriage is a non-citizen of Pakistan. It was contended that the Ordinance would be applicable only where both the parties to a marriage are Muslim citizens of Pakistan. Held—It is impossible to read a limitation of section 7 of the Ordinance that the marriages contemplated by the Ordinance should necessarily be between two Pakistani Muslims. A marriage entered into by Pakistani Muslim with, say, an Indian Muslim woman, would fall within the provisions of this section 7, if it is performed within Pakistan. Sayed Ali Newaz Gardezi vs Lt. Col. Md Yusuf 15 DLR (SC) 9. Marriage celebrated in England entered into by Muslim Polygamous marriage- Marriage celebrated in England before a Registrar of Marriage in England does not necessarily make it a monogamous marriage and if the husband is of a country which allows polygamy, the marriage though performed in monogamous England, the implication is, it is polygamous in character. Mrs Marina Jatoi vs Nuruddin K Jatoi 20 DLR (SC) 27. Marriage in England in form (.e., in accordance with the Marriage Act, 1949) which is recognised as valid under Muslim Law, such marriage can be terminated by a talaq. Mrs Marina Jatoi vs Nuruddin K. Jatoi 20 DLR (SC) 27. Muslim husband marrying a Christian woman-Muslim husband marrying a Christian woman in England) - Such marriage can be terminated in Pakistan under the Muslim Family Laws Ordinance, the lex loci of the husband. Mrs Marina Jatoi vs Nuruddin K Jatoi 20 DLR (SC) 27. Marriage between a Pakistani Muslim and Christian in England cannot be dissolved under section 7— Md Yakub Ali J (dissenting from the majority): Marriage between a Pakistani Muslim and Christian woman in England under the British Marriage Act, 1949 cannot be dissolved by talaq under section 7 of the Muslim Family Laws Ordinance-This can only be done by the divorce of a Court-Such a union being for life cannot be dissolved by pronouncement of talag but only by a Court's decree. Marriage between a Muslim male and Christian female can only be dissolved under the Divorce Act. Mrs Marina Jatoi vs Nuruddin K Jatoi 20 DLR (SC) 27. Section 7(1)- No talaq without service of notice— Non-compliance with the provisions of section 7(1) (regarding delivery of notice to the Chairman) makes talaq legally ineffective. Abdul Aziz vs Rezia Khatoon, 21 DLR 733. Section 7(1)- Talaq becomes effective after the scheduled period- Arbitration Council's function limited- Once written notice of the pronouncement of a talaq in terms of sub-section (1) of section 7 is delivered to the Chairman, the talaq is otherwise valid, will be effective after the expiry of ninety days of the delivery of such notice or if the wife be pregnant at the time of the pronouncement of a talaq, till the pregnancy ends. Thus, so far as talaqs are concerned the Arbitration Council has no function except to take steps to bring about reconciliation between the parties; beyond this the Arbitration Council has nothing to do in this matter. Non-compliance with provisions of sub-section (1) of section 7 of the Ordinance makes talaq legally ineffective. The petitioner in the present case failed to prove compliance with the provisions of sub-section (1) of section 7 of the Ordinance, with the consequence that the alleged talaq, if it was pronounced by him, was not effective in law, so that in the eye of law the marriage between him and the opposite party subsists. Abdul Aziz vs Rezia Khatoon, 21 DLR 733. Section 7 (1)- Per Mustafa Kamal J: Dissolution of marriage- When a divorce proceeds from the husband, it is called talaq, when effected by mutual consent, it is called Khula or Mubara'at, according as the terms are. The Muslim Family Laws Ordinance, 1961 has given statutory recognition to a wife's right of divorce (Talaq-i-taufiz) in exercise of her delegated power to divorce, as also to dissolution of marriage otherwise than by talaq. There are different modes of talaq according as the pronouncement of talaq is by the husband. In the case of Talaq Ahsan (most proper), a single pronouncement is made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse upto three following menstruations, at the end of which talaq becomes absolute. In the case of Talaq Hasan (proper), three pronouncements are made during successive tuhrs, there being no sexual intercourse during any of the following three tuhrs. In the case of Talak-ul-bidaat or Talak-i-badai (which is popularly called Bain talaq in Bangladesh) either three pronouncements are made during a single tuhr in one sentence or three separate sentences or a single pronouncement is made during a tuhr clearly indicating an intention to dissolve the marriage irrevocably. This form of talaq is not recognised by the Shafi and Shia Schools of thought, but the Muslim Family Laws Ordinance, 1961 recognises "pronouncement of talaq in any form whatsoever”, section 7(1). Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 4 BLC (AD) 14. Section 7(1)(3)— As the notice of talaq was given on 2-3-89 to the Administrator, Dhaka City Corporation and also to the petitioner talaq has, on the expiry of 90 days from the date of receipt of notice by the Administrator, taken effect as provided in sub-section (3) of section 7 of the Ordinance. Ataul Hoque (Md) vs Anwar A Karim 4 BLC (AD) 190. Section 7(1)(3)(5)— Per Mustafa Kamal J : The Muslim Family Laws Ordinance, 1961 when interpreted in the light of Articles 8 and 8(IA) of the Constitution presumes iddat as laid down in the Holy Quran. Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 4 BLC (AD) 14. Section 7(4)— Divorce effective without constitution of council- Divorce legally effective even in the absence of proof of constitution of Arbitration Council. Abdul Aziz vs Rezia Khatoon, 21 DLR 733. Section-9, Read with The Code of Criminal Procedure, 1898 Section-488 Past maintenance — A wife can claim past maintenance for herself and for her children for only 6 years prior to the filing of the suit. From a reading of the entire ordinance of 1985 it appears that the provisions thereof are intended to provide for the establishment of Family Courts and for matters connected therewith and are not intended to make provisions for modification or amendment of Mohammedan law or any other substantive law. The Ordinance is indeed procedural in nature. Jamila Khatoon Vs. Rastom Ali 4BLT(AD)-97 Under section 5 of Ordinance of 1985 the wife can claim past maintenance for the child if she has been supporting the child in the same household without any contribution from the father. But if she does not claim separate maintenance for the child, the court will consider the overall needs, keeping in view the fact that she has been supporting a child in the same household. In either case, the claim is subject to Article 120 of the Limitation Act. Jamila Khatoon Vs. Rastom Ali 4BLT (AD)-97 Section-20 The affidavit of divorce is a public document and it requires no formal proof the Appellate Court having the power of the original Court has rightly admitted the said instrument of divorce and legally marked the same as Ext. A. Sirajul Islam Vs. Helena Begum & Ors. 3BLT (HCD)-40 Section-21 Attorney in the instant case the defendant petitioner—the defendant petitioner is the husband of the plaintiff-opposite-party and he is male and not a pardahnashin lady and he cannot be represented by an authorised agent, here his brother in whose favour the Power of Attorney has been made by him (defendant). Md. Atiqur Rahaman Vs. Ainunnahar 7BLT (HCD)-241. মুসলিম আইন অনুযায়ী দেনমোহর হলো স্বামীর উপর একটা বাধ্যবাধকতা যা স্ত্রীর প্রতি সম্মানসুচক হিসেবে প্রদান করা হয়। Under the Muslim law dower is an obligation upon the husband as a mark of respect to the wife. Fatema Bibi Vs. Lal Din, 37 A.L 345, 171, I. C 421. যদি দেনমোহরের দাবির বিষয়টি কোন চুক্তি বা নিকাহনামায় থাকে, তাহলে আইনে বিপরীত কিছু না থাকলে আদালতের উচিত চুক্তিতে বর্ণিত দেনমোহরের সমুদয় টাকার ডিক্রি দেয়া। Where claim for dower is made under contract or in the Nikahnama, the court should, unless otherwise provided by any legislative enactment, award the entire sum provided in the contract. Bani Begum Vs. Mir Aun Ali, 9 Bom L.R 188 & Basir Ali Vs. Hafiz,13 C.W.N 153.4 I.C 462. [post_ads] দেনমোহর অতিরিক্ত হয়েছে বা পরিশোধ করতে স্বামীর অসমর্থতা স্ত্রীর দাবির বিরুদ্ধে কোন অজুহাত হতে পারে না। The mere fact that the amount stipulated is excessive or beyond the means of the husband is no defence against the claim of the wife. Mohammad Sultan Begum Vs. Sirajuddin Ahmed. 161 I.C 329. যদি দেনমোহর হিসেবে স্বামী একটা মাঠ তার স্ত্রীকে হস্তান্তর করে তাহলে স্ত্রী তার স্বামীর বিরুদ্ধে দখলের ডিক্রি পেতে হকদার। যদি অন্য কোন অংশীদার থেকে থাকে তাহলে তারা মামলার প্রয়োজনীয় পক্ষ নয় কারন ডিক্রি তাদের কোন অধিকারকে প্রভাবিত করে না। If the husband transfers a field to his wife as dower she is entitled as against her husband to a decree for possession. If there are other sharers they are not necessary parties to her suit as the decree does not affect their rights therein. Gulbano Vs. Akbar Khalid, 164 I.C 329. দেনমোহর বিয়ের পূর্বে বা বিয়ের সময় বা বিয়ের পরে ধার্য্য করা যায় এবং বিয়ের পরে বাড়ানোও যায়। Dower may be fixed either before or at the time of marriage or after marriage and may also be increased after marriage. Kamarunnessa Vs. Hussain Bibi, 3 All 266 (FB). Bashir Ahmed Vs. Zubaida, 92 I.C 265. Jahuran Bibi Vs. Soleman Khan 58 Cal LJ 251. কোন নাবালক পুত্রের পক্ষে তার বাবা যদি দেনমোহরের কোন চুক্তি করে তাহলে সেই চুক্তি নাবালক পুত্রের উপর বাধ্যকর হবে৷ পিতা ব্যক্তিগতভাবে দেনমোহরের ঋণের জন্য দায়ী নন। A contract of dower made by father on behalf of minor son is binding on the son. The father is not liable personally for the dower debt. Basir Ali Vs. Hafiz, 13 C.W.N 153.4 I.C 462. Mohammad Siddiq Vs. Shahabuddin, 49 All 557, 100 I.C 363. স্বামীর সাথে বসবাস করতে অস্বীকৃতি স্ত্রীর আশু দেনমোহরের অধিকারকে খর্ব করে না৷ The refusal of the wife to live with the husband cannot defeat the right of the wife to prompt dower. Most. Mohammadi Vs. Jamiluddin, P.L.D 1960 (Karachi), 663. [post_ads] মৃত ব্যক্তির উত্তারাধীকারীরা দেনমোহরের ঋণের জন্য ব্যক্তিগতভাবে দায়ী নন। কিন্তু দেনমোহরের দাবির জন্য যদি বিধবা তার স্বামীর সম্পত্তির দখলে থাকে, তাহলে তার স্বামীর অন্যান্য উত্তরাধীকারীরা আনুপাতিকহারে দেনমোহরের টাকা পরিশোধ করে তাদের স্ব স্ব অংশ পুনরুদ্ধার করতে পারে৷ The heirs of the deceased are not personally liable for the dower debt. But where the widow is in possession of her husband's property under the claim of her dower, the other heirs of her husband are severally entitled to recover their respective shares upon payment of part of the amount of dower debt proportionate to their shares. Hamira Bibi Vs. Zubaida Bibi, 38 All, 581, 36, I.C 87. শান্তিপূর্ণ এবং আইনসঙ্গতভাবে একবার সম্পত্তির দখল অর্জন করলে, দেনমোহরের টাকা পরিশোধ না হওয়া পর্যন্ত ঐ সম্পত্তি দখলে রাখার অধিকার মুসলিম আইন বিধবা স্ত্রীকে প্রদান করেছে । The possession of the property being once peacefully and lawfully acquired, the right of the widow to retain it till her dower debt is paid, is conferred upon her by the Mohammedan law. Maina Bibi Vs. Chaudhri Vakil Ahmad, 47, All 250, 86, I.C 578. দখলে রাখার অধিকার বিধবা স্ত্রীকে সম্পত্তিতে কোন স্বত্ব দেয় না । The right to hold possession does not give the widow any title to the property. Abdul Wahab Vs. Mustaq Ahmed, All (1944) 68. 211 I.C 475. [post_ads] স্বামীর মৃত্যুতে অথবা তালাকের মাধ্যমে বিবাহ বিচ্ছেদ হলে সম্পত্তি ধারণের অধিকার উদ্ভূত হয়৷ Right of retention arises either on the death of the husband or on the dissolution of marriage by divorce. Asia Khatun Vs. Amerendra Nath, 44, C.W.N 586, 191, I.C 783. Section 5— Liability of the husband to pay the dower and maintenance to his wife on the dissolution of marriage— Family Court Ordinance, 1985 Section 5 When the marriage is admittedly dissolved by talak at the instance of the husband, the wife is legally entitled to realize the dower money as stipulated in the kabinnama and also maintenance during the period of her iddat. The husband having failed to prove the payment of dower by any cogent evidence the Family Court decreed the suit which has been upheld consistently upto the apex court by concurrent findings. (স্বামীর দ্বারা তালাকের মাধ্যমে বিবাহ বিচ্ছেদ হয়ে গেলে, স্ত্রী কাবিননামায় নির্ধারিত দেনমোহরের অর্থ এবং তার ইদ্দতের সময়কালীন ভরণপোষণের জন্য অর্থ আদায় করতে আইনত অধিকারী। কোনও শক্ত প্রমাণের দ্বারা স্বামী দেনমোহর পরিশোধ এর বিষয়টি প্রমাণ করতে ব্যর্থ হওয়ায় পারিবারিক আদালত মামলাটিতে ডিক্রি প্রদান করেন যাহা শীর্ষ আদালত পর্যন্ত ধারাবাহিকভাবে বহাল থাকে।) SHAHID HAMID VS. NILUFAR MOMTAZ, 14 MLR (AD) (2009) 33 Family Court Ordinance (XVIII of 1988) Section 17 Code of Civil Procedure, 1908 Section 107 Order XLI rule 33 The mere fact of first plaintiffs not having preferred an appeal or a cross-appeal or cross-objection would not by itself be sufficient to justify refusal to exercise the power contained in rule 33 of Order 41 of the Code. (প্রথম বাদীপক্ষের আপিল বা ক্রস-আপিল বা পাল্টা-আপত্তি না করার বিষয়টি কেবল দেওয়ানী কার্যবিধির আদেশ ৪১ এর ৩৩ নং বিধিতে থাকা ক্ষমতা প্রয়োগ করতে অস্বীকারকে ন্যায্য বলা যথেষ্ট নয়।) HASIBUR RAHMAN (MD) VS. SHAKILA BEGUM AND ANOTHER, 53 DLR (2001) 152 [post_ads] Section 17— Appeal against the judgment and decree of the Family Court-Muslim Family Laws Ordinance, 1961— Section 10— When mode of payment of dower is not specifically mentioned in the Kabinnama, the entire dower is presumed to be payable on demand— Marriage between the plaintiff and the defendant is admitted. The wife though not taken to the house of the husband, claims to have their marriage consummated which is supported by consistent evidence. There is presumption to the effect that the marriage was consummated and the wife is entitled to the entire dower. (বাদী ও বিবাদীর মধ্যে বিয়ের বিষয়টি স্বীকৃত। যদিও স্ত্রীকে স্বামীর বাড়িতে নিয়ে যাওয়া হয়নি কিন্তু তাদের মধ্যে শারীরিক সম্পর্কের বিষয়টি স্বাক্ষ্য দ্বারা সমর্থিত। শারীরিক সম্পর্ক স্থাপিত হয়েছিল বিধায় স্ত্রী সমুদয় দেনমোহরের টাকা পেতে হকদার। Wahcd AH (Md.) Vs. Moshma Khatun 14 MLR (2009) (HC) 427. By the Mohammedan law a son to be legitimate must be the offspring of a man and his wife or a man and his slave; any other offspring is the offspring of zina, that is illicit connection, and cannot be legitimate. The term"wife" necessarily connects marriage; a marriage may be constituted without any ceremonial, the existence of a marriage in any particular case may be an open question. Direct proof may be available, but if there be no such, indirect proof may suffice. Now one of the ways of indirect proof is by an acknowledgment of legitimacy in favour of a son. Habibur Rahman Vs. Altaf Ali (22) A. (P.C) 159, 60 I.C 837. 48 Cal 856. Acknowledgment or prolonged cohabitation as husband and wife raises a mere presumption. But where evidence came on record that there was no marriage at all, when the children were begotten the children cannot be legitimated by acknowledgment. Razia Begum Vs. Shalhebzadi Anvar Begum, (58) A. Andra Pradesh 195. Where a married woman was driven out by the husband within few days after the marriage on the ground of her concealed pregnancy and a child was born to her within about four months after her being driven out, no presumption under section 112 of the Evidence Act, 1872 can be raised, as there was no valid marriage. Abdul Raheman Kutty Vs. Ayesha Beebi, (60) A. Ker, 101. Rules of presumption of legitimacy under the Mohammedan Law according to Hanafi Law are as follows:- (a) a child born within less than six months after marriage is illegitimate; (b) a child born after six months from the date of marriage is presumed to be legitimate; (c) a child born within two years after termination of marriage is presumed to be legitimate unless disclaimed by lian. According to Shafi and Maleki law, the period is four years and according to Shia law it is ten months. The legitimacy of a child of Mohammedan parents may properly be presumed or inferred from circumstances without proof or at least without any direct proof, either of a marriage between the parents or of any formal act of legitimation. Mohammad Bauker Vs. Sharfoonnessa, 8 M.L.A 136, 165 I.C 232. A statement of a deceased father that he was married to the mother of the child is evidence of marriage from which the legitimacy of the child may be presumed. Zamin Ali Vs. Azizunnessa, 55 All 139. 144 I.C 433. The doctrine of acknowledgment of legitimacy is limited to cases of uncertainty of legitimate descent and proceeds entirely upon an assumption of legitimacy and establishment of such legitimacy by force of such acknowledgement. The doctrine of acknowledgment is not a mere rule of evidence, but is part of Substantive law of inheritance. So the question relating thereto must be determined with reference to Islamic jurisprudence. Mohammad Allahdad Vs. Mohammad Ismail, 10 All 289, 337. An acknowledgment may be express or implied which may be presumed from the fact that the person has habitually and openly treated the child as his legitimate child. Mohammad Azmat Vs. Lalli Begum 9. 1.A 8, 8 Cal 422. Sadakat Hossain Vs. Mohammad Eusuf, 10 Cal 663. Abdul Razak Vs, Aga Mohammad Gaffer, 21, Cal 666. 21. I.A 56. Bibi Fezeelatunnessa Vs Kamrunnessa,9 C.W.N 352, 8 Cal 422. The person acknowledged must not be the offspring of Zina (unlawful intercourse) that is adultery, incest or fornication, if the mother could not have been the lawful wife of the acknowledger at the time when he was begotten or the mother was at that time was wife of another or was divorced by the acknowled ger or was within prohibited degree of the acknowledger. Habibur Rahman Vs. Altaf Ali 48, I.A, 144, 48 Cal 856, 60 I.C 887 Sadik Hossain Vs. Hashim Ali, 43 IA 212, 38 All 627, 36 I.C, 104 Rashid Ahnmed Vs. Anisa Khatun 59 I.A 54 AIl 46, 10 All 289, 34, Bom 111, 42 C.W.N, 272. Liaqat Ali Vs. Karimunnessa, 15 All 396, 4 I.C 254, 48, I.A, 114, 60, I,C 837. The person acknowledged must not be known to be the child of another man. Usman Mia Vs. Valli Mohammad, (1916) 40 Bom, 28, 30 I.C 904 Acknowledgment is sufficient to establish a valid marriage unless the contrary appears provided the marriage is not disputed. If the marriage was not possible at all there can be no acknowledgement. Fatema Bi Ammal Vs. A. A. Md. Mohiuddin, (1971) 2 M.L.J 451. Acknowledgment as a son means acknowledgment as a legitimate son. Fazeelun Bibi Vs. Omdah Bibi, (1868) 10 W.R 469, 36 I.C 104, 40 Bom 28. The issue of adultery, incest or fornication can not be legitimated by acknowledgment. The issue of a remarriage between divorced persons, where the wife was repudiated by triple divorce without intervening marriage would also be the issue of fornication on the ground that such remarriage is void. Rashid Ahmed Vs. Anisa Khatun (1932) 59 I.A 21, 54 All 46, 153 I.C 762. No presumption of marriage arises from long cohabitation if the woman was a prostitute when she was brought to the home of the man whom she claims to be her husband. But if the man acknowledges his children by her as his legitimate children, marriage with her will be presumed, lawful when the children were begotten. But if it is proved definitely that there was no marriage between the parties when the children were begotten. The issue would be of fornication and they can not be legitimated by acknowledgment. Gaznafar Vs. Kaniz Fatema, (1910) 37 I.A 105, 32 All 345, 6, I.C 674. Imambandi Vs. Mutsuddi, (1918) 45, 1.A 73, 47 I.C 513, 45 Cal 878. Acknowledgment gives the right of inheritance to the children acknowledged of the property of the acknowledger. Khaja Hayat Vs. Raijan Khanam, 3 M.I.A 295. Khajoornnesa Vs. Rowshan Jahan, 2 Cal 184. 3, I.A 291. Acknowledgment of legitimacy once made cannot be revoked. Ashrafuddoula Vs. Hyder Hossain, 11 M.I.A 94. Mohammad Allahdad Vs. Mohammad Ismail 10 All 289. Mohammedan Law does not recognize adoption as mode of filiation and confer no right of inheritance. Mohammad Allahdad Vs. Mohammad Ismail, 10 All 289, 39, Cal 418, 39, I.A 19, 13, I.C 344. 39 Bom L.R 1324. The husband is bound to maintain his wife so long she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him or is otherwise disobedient. Mohammad Ali Vs. Ghulam Fatema 160 I.C 365. Khatijan Vs. Abdullah 194 Kar 535. If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement. Abdul Fatteh Vs. Zibunnessa, 6 Cal 631. A wife can file suit in the Family Court for her own maintenance as well as for her child. Limitation of three years provided by article 103 and 104 of the Limitation Act, 1908 is applicable to suit for dower while article 120 is applicable to suit brought by a Muslim wife for past maintenance upto six years prior to the filing of the suit. Jamila Khatoon Vs. Rustom Ali, 1 M.L.R (1996) (A.D) 113. Wife is entitled to maintenance during the period of iddat following divorce. Mariam Vs. Kadir Baksh, Rashid Ahmed Vs. Amina Khatun, 54 All 46, 135 I.C 762. A widow is not entitled to maintenance during the period of iddat consequent upon her husband's death. Aga Mohammad Jafar Vs. Kulsum, 25 Cal, 9. A father is bound to maintain his sons and daughters until the sons attained the majority and the daughters are married. Emperor Vs. Aysha Bai, 6 Bom L.R 536. Where the father is entitled to the custody of the daughter and offers to keep her in his house and maintain her, the daughter has no right to separate maintenance unless there are circumstances which justify the daughter to stay away from the father's house. Bayabai Vs. Esmail Ahmed, 43 Bom L.R 823. Dinsab Karimsab Vs. Mohammad Hussain, 47 Bom L.R 345. Minor child living with a divorced mother is entitled to maintenance. Mohammad Yusuf Khan Vs. Zarina, 1975,.Cr. L.J, 1988. Wife voluntarily left the house of her husband and refused to the husband and there was no proof of ill-treatment, the suit instituted by the wife for maintenance or for dissolution of marriage is not maintainable. Sherinzadi Vs. Gul Mohammad, P.L.D (1961) Pesh, 66. No matter the wife is poor or rich if the husband fails to provide her maintenance for a period of two years, the wife is entitled to a decree for dissolution of marriage. Said Ahmed Vs. Sultan Bibi, (43) A.Pesh, 73. As required under section 7(1) of the Muslim Family Laws Ordinance, 1961, the notice of divorce shall be sent to the chairman in whose jurisdiction the wife was residing at the time of pronouncement of the divorce. When the notice is not properly served the divorce does not become valid and the marriage between the husband and the wife subsists and as such the wife so long remains loyal is entitled to maintenance. Kazi Rashed Akhter Shahid (Prince) Vs. Most Rokshana Chowdhury (Sandha), 11 M.L.R (2006)(H.C) 305. Any person professing any faith is entitled to bring a suit for the purposes enumerated under section 5 of the Family Court Ordinance, 1985. Thus a Hindu wife is therefore entitled to institute a suit for maintenance in the Family Court. Nirmal Kanti Das Vs. Sreemati Biva Rani, 1994 B.L.D 413. Children in easy circumstances under the Mohammedan law are bound to maintain their poor parents even if they are able to earn something. The poor parents may file suit in the Family Court for maintenance from their children. Similarly poor and disabled relatives even servants of the wife can maintain a suit for maintenance under the Family Courts Ordinance. Jamila Khatun Vs. Rustam Ali; 48 D.L.R (A.D) 110, 1996 B.L.D (A.D) 61. Where the wife voluntarily left the husband and she is not interested to return on fear of injury to life, the court should grant decree for restitution of conjugal rights. In that case the wife is not entitled to get the deferred dower or maintenance. Nur Akhtar Vs. Md. Abdul Mabud Chowdhury, 1 B.L.C, 404. The wife can institute a suit in the Family Court for her maintenance and also claim maintenance for her child in the same suit. Separate suit need not be filed nor the child is required to be co-plaintiff with the mother in the suit. Saleha Begum Vs. Kamal Hossain, 50 D.L.R, 180. Family Court has the jurisdiction to entertain and decide suits instituted by members of other community for settlement of dispute regarding maintenance etc. Gonesh Chandra Das Vs. Arati Acharjya, 54 D.L.R, 348. If the children prefer to live with their mother due to natural affection that would not in any way relieve the father of his liability to maintain the children. Bazlur Rahman Sikder Vs. Tahera Begum Shamima, 50 D.L.R, 612. Child born during the subsistence of marriage is legitimate child and is entitled to maintenance till he attains majority. Jashimuddin Vs. Dali Begum and another, 56 D.L.R 358. The Family Courts Ordinance, 1985 does not in any way diminish or curtail the rights already possessed by a litigant under the Mohammadan law or any other substantive law with regard to matters mentioned in section 5 of the Ordinance. A wife can file suit in the Family Court for her own maintenance as well as for her child. Limitation of three years provided by article 103 and 104 is applicable to suit for dower while article 120 is applicable to suit brought by a Muslim wife for past maintenance upto six years prior to the filing of the suit. Jamila Khatun Vs. Rustom Ali, 1 M.L.R (1996) (A.D) 113. On the coming into force the Family Courts Ordinance, 1985 and the Family Court having exclusive jurisdiction in matters of maintenance of wife and children, the jurisdiction of the Magistrate to entertain any application or to initiaté any proceedings in respect of maintenance under section 488 of the Code of Criminal Procedure, 1898 have been altogether ousted. Pochon Rikssi Das Vs. Khuku Rani Dasi and others, 3 M.LR (1998) (H.C)145. Family Courts Ordinance, 1985 applies to all citizens of Bangladesh irrespective of religion. A Hindu wife can well bring a suit in the Family court for the maintenance against her husband. Rochon Rikssi Das Vs. Khuku Rani Dasi and others, 50, D.LR (H.C) 47. Nirmal Kanti Das Vs. Sreemati Biva Rani, 47 D.LR (H.C)514. According to the Muslim law a divorced wife is entitled to maintenance during the period of her iddat. It is not permissible under the law to grant maintenance to a divorcee wife during her life time Abdur Razzak Vs. Mohsena Ara Begum and others, 10 M.L.R (2005) (H.C) 232. Suit for maintenance during the subsistence of marriage brought by the wife is maintainable- Notice of divorce must be given to the Chairman in whose jurisdiction the wife resides at the relevant time. When the notice as required under sub-section (1) of section 7 of the Muslim Family Laws Ordinance, 1961 is not properly served the divorce does not become valid and the marriage between the husband and the wife subsists and as such the wife so long remains loyal is entitled to maintenance. Kazi Rashed Akhter Shahid (Prince) Vs. Most Rokshana Chowdhury (Sandha), 11 M.L.R (2006) (H.C) 213 Partition Suit Partition Suit The name of the plaintiffs and other co- sharers, by inheritance or otherwise, appear in the latest SA/RoR khatina. No decree can be passed by the trial court, when it admits that, the suit property is not identifiable with SA/RoR plots or khatian. Nor any saham can be given in respect of an unspecified property. The trial court in its judgment has recorded that, the suit property is not identifiable with reference to the RoR or SA khatain, although both the courts below are silent about non-identification of suit property for lacking any boundary and for lack of any reference to the latest survey or khatian bearing names of the plaintiffs as the tenants, and both the courts below have failed to appreciate that no unidentified property can be partitioned. [ 73 DLR 111] Code of Civil Procedure (V of 1908) Order XIV, rules 1 and 2 If the plaintiff does not make proper prayer in the plaint, the suit must not be dismissed on the said ground; rather it would be the duty of the Court to frame appropriate issue/s on the basis of the pleadings and submissions put forwarded by all the parties to the suit and proceed with the suits towards its effective disposal......(19) [ 73 DLR 52] Code of Civil Procedure (V of 1908) Section 9 When a natural/juristic person would find a dispute in the way of her/his enjoyment of any right of a civil nature, s/he is entitled to institute a civil suit in a competent Civil Court unless its cognizance is either expressly or impliedly barred by a statute. [ 73 DLR 52] Code of Civil Procedure (V of 1908) Order XX, rules 18(1) and 18(2) The consequential division/separation by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calcula tions and considering various permutations/ combinations/ alternatives of division is referred to the Collector under Order 20, rule 18(1) of the CPC and is the subject matter of the final decree under Order 20, rule 18(2) of the CPC. Since in a partition suit, a person approaches the Civil Court with a grievance of not being able to enjoy his/her property absolutely or independently or peacefully and, in responding to the plaintiff's case, if the defendant questions the very title of the plaintiff, in that scenario, it is incumbent upon the Court to assess and determine the plaintiff's title, right and interest in the suit land. Even, if the plaintiff is not opposed/encountered by the defendant as to title on the suit land, it would be a prudent performance for a Court to examine the source/basis of the plaintiff's as well as defendant's ownerships in the suit land and thereby determine the title of the plaintiff and the defendant/s. Because, it would not only be useful and helpful for the Court-appointed Commissioner or the Collector to proceed further with the suit towards execution of the decree, but it would also help to curb multiplicity of suits. That is to say, in a suit for partition or separation of a share, irrespective the defendant's challenge as to the plaintiff's share in the suit land, the Court, at the first stage, would decide whether the plaintiff has a share in the suit property and whether s/he is entitled to division and separate possession. [ 73 DLR 52] Code of Civil Procedure (V of 1908) Order VII, rules 1(e) and (g) When a grievance or complaint or dispute is placed before a Court, the Court's primary duty is to consider its substance, which may be derived from not only the averments and prayer, but also from the evidence led by the parties at the trial. Because, considerations of form cannot override the legitimate considerations of substance. From the averments and/or prayer (pleadings), if it transpires that a plea is not specifically made but it is covered by an issue by implication, and it appears to the Court that other side would not be prejudiced; in other words, it is within the knowledge of the other side that the plea was involved in the trial, then, the mere fact that the plea was not expressly taken in the pleadings would, in my opinion, not necessarily debar a party from relying upon it if it is satisfactorily proved by evidence. [ 73 DLR 53] Code of Civil Procedure (V of 1908) Section 16 At the very beginning of the averments of the plaint there should be a 'cause title'; meaning a brief statement about the reason for institution of the suit, that information should be sufficient for the nazarat section of the court for classifying the suit as 'suit for declaration of title', 'suit for specific performance of contract', 'suit for recovery of rent, etc. If there is really a need of naming the suit, the litigants, Advocates and Courts may use the simple expressions of 'Civil Suit' for all classes of substantive suits and 'Civil Miscellaneous Case' for all types of civil miscellaneous proceedings, such as, pre-emption case, application for restoration of the suit or any other miscellaneous application arising out of the substantive suit. ..(13) [ 73 DLR 53] Hotchpotch Suit for Partition-When various properties are put together or blended for the purpose of achieving the portion of property to be distributed among the beneficiaries or legal heirs as per the laws of the concerned country; in words, in order to divide the properties, which are presently enjoyed by the different individuals by virtue of inheriting or purchasing from a single person/source, 'hotchpotch' is the process of combining and assimilating of the properties. Although the terminology may seem to be a jargon to the commoners, however, it is widely used in legal parlance in the suits for partition in all over the common-law jurisdiction. [ 73 DLR 53] Code of Civil Procedure (V of 1908) Section 54 In a suit for partition, once the Court passes the preliminary decree (i.e. make a declaration as to saham of the plaintiff/s and defendant/s), it is incumbent upon the Court to proceed with the separation (i.e. the ministerial or administrative act) of the plaintiff's saham from other parties of the suit, without expecting/waiting for a formal application from the parties of the suit. [ 73 DLR 53] Appellate Court can take additional evidence Evidence Act (1 of 1872) Sections 165 The appellate Court, in an appropriate suit if required, is not only empowered to take additional evidence, which would not amount to filling up lacuna caused due to the negligence/failure of any party to the suit, but also competent to call for necessary documents and persons by invoking the Court's power under section 165 of the Act read with sections 30, 31, 32 and Order 19 of the CPC. Under the constitutional duty of superintendence in addition to being invested with the revisional power by the CPC, this Court notifies that when the learned Judges of the subordinate Courts perform their functions as the trial Court's Judge or the appellate Court's Judge, they should not hesitate to resort to the provisions of section 165 of the Act, sections 30, 31, 32 and Order 19 of the CPC in an appropriate case for the purpose of fair and effective adjudication of a suit. The trial Courts and appellate Courts, under the provisions of laws, possess ample powers to summon and, if the situation warrants, then, to compel the appearance of any person in the Court and to produce the necessary relevant papers to the Court and take their deposition as Court Witness/es. [ 73 DLR 54] Partition Suit The name of the plaintiffs and other co sharers, by inheritance or otherwise, appear in the latest SA/ROR khatina. No decree can be passed by the trial court, when it admits that, the suit property is not identifiable with SA/ROR plots or khatian. Nor any saham can be given in respect of an unspecified property. The trial court in its judgment has recorded that, the suit property is not identifiable with reference to the RoR or SA khatain, although both the courts below are silent about non-identification of suit property for lacking any boundary and for lack of any reference to the latest survey or khatian bearing names of the plaintiffs as the tenants, and both the courts below have failed to appreciate that no unidentified property can be partitioned.......(27 & 28) [ 73 DLR 111] Pre-emption Suit Co-sharership can not be ceased by mere mutation' The High Court Division upon discussing all the facts and circumstances of the case came to a conclusion that the mutation of any person's name in the holding is nothing but only for payment of rent and the co-sharership can not be ceased by mere mutation' and accordingly the High court division found that "both the Courts below failed to consider that mere mutation in fact ceased any one to be a co-sharer and, as such, both the courts below arrived at an erroneous finding in holding that due to mutation the right of pre emption of the pre-emptor has been lost and consequently the pre-emptor lost his co sharership in the holding". In section 24 of the Non-Agricultural Tenancy Act it is provided that if a co-sharer tenant owns a portion of land in any plot, he is to be treated as co-sharer in the entire plot even if the land of that plot is recorded in AK than one Khatian. Thus in spite of the fact that the khatian is separated by mutation the pre emptor is still a co-sharer in the case plot. This vital aspect has not at all been considered by the erred in law in disallowing pre-emption. The High courts below and thereby both the Courts below Court Division rightly considered this aspect of law made the Rule absolute and set aside the judgments of both the Courts below. [73 DLR (AD) (2021) 57] Reliance may be placed on the case of Fazaruddin vs Maijuddin, 44 DLR (AD) 62 where it has been held that knowledge of transaction of the pre-emptor and subsequent acts of pre-emptees possession do not constitute waiver and acquiescence. Right of pre-emption cannot take away by mere verbal assurance of the person having such right unless other facts and circumstances make out a case of acquiescence or waiver. [73 DLR (AD) 158] Reliance may also be placed on the case of Md Dewan Ali vs Md Jasim Uddin, (2008) 13 f MLR (AD) 198 = 60 DLR (AD) 73, where it has been held as under: "Right of pre-emption accrues on the date of registration of the sale deed. The pre emptive right of purchase of the case land accrued to the pre-emptor only after the case land was sold to the purchaser pre-emptee by its owner and not before. Preemptive right does not exist before sale and so it is not enforceable before sale. Any such right before sale is an inchoate and immature right. Hence no conduct of the pre-emptor before sale of the case land refusing to purchase the same or consenting sale thereof to other can constitute waiver, acquiescence or estoppel demolishing his right of pre-emption. The bare requisite for extinction or demolition of pre-emption right lies in the accrual or existence of such right. In the instant case, the facts and circumstances proved on evidence do not establish that the conduct of the pre-emptor amounted to waiver, acquiescence or estoppel affecting his right of pre-emption." [73 DLR (AD) 159] S. 96—Raiyat defined—Right of pre-emption. Where the petitioners were allowed to exercise their right of pre-emption in respect of certain nonagricultural lands sold away by their co-sharers to a third party, the first appellate Court disallowed it, on the ground that the land had been acquired by the Provincial Government and the mere deposit of money would not be enough to cover the requirement of section 96. Held: As the land is not used for cultivation, the petitioners do not come within the definition of ‘raiyat’ within the meaning of section 96 of the East Bengal State Acquisition and Tenancy Act, 1950. 10 PLR (Dac) 1018. —In order to maintain a claim for pre-emption, the pre-emptor should have an interest in the holding as a co-sharer-tenant not only at the time of the tiling of the application for pre-emption but also throughout the proceedings. Lakhi Kanta Patibar Vs. Sunil Kurnar Patibar (1965)17 DLR 327. —Former raiyat possessing some lands in his khas possession within a holding and letting out some portion in the same to an under raiyat—After acquisition of the rent-receiving interest by the Government the under-raiyat in respect of his share of lands under the original raiyat became himself a raiyat directly under the Government—This results in effecting two separate tenancies, each independent of the other—When therefore the original ratyat transfers (after the acquisition under the Act) some lands which were in his possession the original under raiyat who now became a raiyat directly under the Government cannot claim pre-emption on the ground of his being a co-sharer, as under law he cannot be treated as a co-sharer. Huzzat Ali Vs. Imamuddin Bapari (1961)13 DLR 819. —Application for pre-emption shall have to be filed within four months of the date of knowledge. Provisions of section 96 are procedural laws. The question is whether to an application by a non-notified co-sharer for pre-emption in respect of a transfer, which took place, before the section 96 of the East Bengal State Acquisition and Tenancy Act came into force but filed after the said date, the provisions of the said section will apply or it will be governed by section 26 of the Bengal Tenancy Act read with the general law of Limitation. Huzzat Ali Vs. Imainuddin Bapari (1961) 13 DLR 819. —Pre-emption, right of contiguous landowners—Sub-section (2) has two parts—Co-sharer applying for pre-emption need not impicad contiguous land holders as parties, but a contiguous land owner applying for pre-emotion must implead other contiguous land holders as well. Raji Wahad Ali Vs. Kadam (1962) 14 DLR 204. —Co-sharer becomes party to a pre-emption proceeding from the date of notice on him—Notice on him to represent minors will not in law make him a party as a co-sharer. Right of the remaining co-sharer tenants to join within prescribed time—Application for rateable preemption under 96(4) not possible unless application under section 96(1) was first made. Syed Abdul Karim Vs. Harendra Chandra Dhupi (1962) 14 DLR 847. —Pre-emption application having been filed in Court any re-conveyance of the property by the transferee to the transferor will not defeat the application for pre-emption. Abu Hossain Vs. Md. Masim Au (1967) 19 DLR 677. —The suit for pre-emption was framed as one under section 96 of the LB State Acquisition Act but subsequently it being found, having the nature of the land, that pre-emption could be claimed under section 24 of the LB Non-Agricultural Act a prayer for treating the claim as one under section 24 of the EB Non-Agricultural Act was made before the High Court Division which court rejected it on the ground that it was a new case altogether. Held: The prayer ought to have been granted as it is not correct to say that new case has been made—Such amendment could also be allowed if no mention of section 24 is made in the plaint. Jadav Chandra Mali Vs. A Khaleque (1975) 27 DLR (SC) 114. —A nadabipatra being merely a deed of disclaimer disclaiming any interest in the properties transferred by an earlier sale deed is not itself deed of transfer and, therefore, no right of pre-emption can be claimed upon the registration of such a deed of nadabipatra. Simply the fact that the document was registered and ad valorem stamp fee was paid on the document by itself cannot turn a deed of disclaimer into a deed of transfer. (1959) 11 DLR 539. —Hiba and hiba-bil-iwaj—Love and affection combined with payment of money—Deed interpreted not as hiba-bil-iwaj and provisions of sec. 26F not applicable. (1960) 12 DLR 479. —A non-notified co-sharer u/s. 88 can maintain pre-emption application. Since the respondent pre-emptor is entitled to maintain the application for pre-emption under section 26F of the Bengal Tenancy Act, the respondent, a non-notified co-sharer seeking pre-emption under section 26F of the Bengal Tenancy Act is entitled to the application for pre-emption within three years from the date of the sale. Addition of opposite parties made beyond the period of limitation cannot be a bar for denying the right of the respondent. Begum Asia Rahman Vs. Abdul Bashir (1974) 26 DLR (SC) 59. —Right accrued u/s. 26F, BT Act is not destroyed (in respect of pre-emption) by virtue of s. 96 of the State Acquisition Act. It appears on a comparison of provisions of sections 26F of the Bengal Tenancy Act and 96 of the State Acquisition Act that the legislature by repealing the Bengal Tenancy Act did not destroy the right accrued under the Bengal Tenancy Act. From the provisions of the State Acquisition Act it cannot be said that the right accrued under section 26F of the Bengal Tenancy Act was destroyed. Begum Asia Rahman Vs. Abdul Bashir (1974) 26 DLR (SC) 59. —Provision of section 96 is different from that of section 26F of BT Act. Right of pre-emption accrued before the repeal of the Bengal Tenancy Act does not cease to be a right under the repealed Act by virtue of section 8 of the Bengal General Clauses Act, 1899. An applicant seeking to enforce his right of pre-emption accrued under section 26F of the old Act is entitled to the rule of three years limitation as was available to him before the repeal. Abdul Malek Vs. Abdur Rahman (1967)I9DLR 318. —Proviso (As stood amended by EB State Acquisition and Tenancy Act, (4th Amendment) Ordinance, 1961, giving retrospective effect to its provision. Even though the sale deed was not legally valid when it was executed as well as when suit in relation to the sale was filed, it would be treated as valid if during the pendency of the suit a new law [in the present case 4th Amendment Ordinance of 1961] permitting such transfer comes into existence, since the Court is bound to apply the current law to its decision. Rais Ali Vs. Jobed Ali (1967) 19 DLR 510. —Petitioner acquired a right of pre-emption in respect of the land in suit under section 26F of B.T. Act but application for pre-emption was made when section 96 of the State Acquisition Act came into force—Petitioner is entitled to pre-empt the land under the provisions of section 26F, BT Act. Abdul Basir Bhuiyan Vs. Begum Asia Rahman (1967)19 DLR 615. —Only co-sharer tenants who arc occupancy raiyats can seek pre-emption under section 26F. The right of pre-emption under section 96, on the other hand, is an incident of a holding of a “raiyat” who is entirely different from an occupancy raiyat under the Bengal Tenancy Act, and who is a malik according to section 82(8) of that Act. Abdul Basir Bhuiyan Vs. Begum Asia Rahman (1967) 19 DLR 615. —The procedure of the section 96 is not retrospective in operation. To give it a retrospective effect will give rise to many difficulties resulting in injustice to an applicant whose right to pre-empt accrued when section 26F of the BT Act was operative. Hence any construction that the procedure prescribed in section 96 has retrospective effect in the case of enforcement of a right of pre-emption accrued under the repealed section 26F is textually inadmissible. Abdul Basir Bhuiyan Vs. Begum Asia Rahman (1967) 19 DLR 615. —Several holdings transferred by one document—Co-sharer of one such holding entitled to apply for pre-emption with regard to that holding—A prayer may be made by one application in respect of two distinct holdings. Mosammat Asimon Nessa Vs. Md. Akbar Ali Sheikh (1967) 19 DLR 659. —Pre-emption proceeding will be. governed by the BT Act, even after the coming into operation of Act XXVIII of 1951, unless Part V, is put in operation by Notification. The right of pre-emption vested (in the co sharer) under section 26F of the Bengal Tenancy Act if the sale in question had taken place prior to the coming into operation of Part V of the East Bengal State Acquisition and Tenancy Act. Md. Haratulla Sardar Vs. Md. Majid Baksh Daria (1967) 19 DLR 630. —Transfer is affected by hiba-bil-ewaz—Price stated in the document not conclusive for pre-emption purpose. Where a transfer is effected by hiba-bil-ewaz in spite of the value put in the transfer deed by the transferor of the ‘hiba bil ewaz’ and that for the purpose of registration of the deed, the transferee when faced with a pre-emption application by a co-sharer of the holding is not estopped from proving that the price of the land transferred is higher than what has been stated by the transferor of the deed. Md. Azizul Bari Vs. Md. Ismail (1967)19 DLR 184. —Korfa interest has ceased to exist from the date of acquisition 0/the rent-receiving interest under section 3—They (korfa tenants) having become raiyats the provisions of pre-emption by co-sharer tenant available to them. After the wholesale acquisition by the Government of rent receiving interest in 1956 there will be one kind of raiyat only in the country under the Government and that being the position there could not be any question of korfa or any other kind of sub-tenants. The holders of korfa being upgraded to the status of raiyat, a co-sharer in respect of such interest has got the full right of pre-emption available to them under section 26F of the BT Act. Priya Bala Dew Vs. Fazar Ali (1966) 18 DLR 480. —Section 96 and the procedure and limitation under it have no retrospective application. Serajuddin Ahmed Vs. Haris Mia (1968) 20 DLR 312. —If by one document lands of several holdings to which the applicant is a co-sharer tenant are sold—one application for pre-empting the lands of all the holding is maintainable if the applicants claim is not barred otherwise. Hajee Majarullab Sowdagar Vs. Mvi. Narul Haque (1971)23 DLR 68. —Pre-emption—one application for preemption was filed with regard to three independent sales of several holdings to which the applicant was a co-sharer tenant. Held: The application is maintainable if it is not barred by limitation and not also barred otherwise. Hajee Majarullah Sowdagar Vs. Mvi. Nurul Haque (1971) 23 DLR 68. —Pre-emption—persons to be impleaded as parties in an application for pre-emption. The persons who are to be impleaded as panics in an application for pre-emption are as follows: (i) In the case of an application by a co-sharer by inheritance all other co-sharers by inheritance are to be impleaded. (ii) In the case of an application by a co-sharer by purchase all other co-sharers by inheritance or by purchase are to be impleaded. (iii) In the case of an application by a holder of land contiguous to the land transferred, all co-sharer tenants, either by inheritance or by purchase, as well as other holders of land contiguous to the land transferred, must be impleaded. Hajee Majarullah Sowdagar Vs. Mvi. Nurul Haque (1971) 23 DLR 68 —A claim for pre-emption under section 96 supported by the record-of-rights showing the applicant as the owner of the contiguous plot of land cannot succeed where the Court has given judgment in favour of the applicant on the basis of record-of- rights alone ignoring relevant documents produced by the opposite party which showed that the recording of the applicant’s name in the record-of-rights was not correct. Kutu Chand Miah Vs. Rabindra Kumar Deb (1970)22 DLR 295. —By consenting to a transfer made in pursuance of a compromise decree a person loses his right of pre-empting altogether. In pursuance of a compromise decree passed in a suit for specific performance of contract, X transferred certain land to A and B (the co-sharer tenants by purchase in the disputed plot) by a registered deed Ext. 1. Thereupon, A filed an application for preempting B’s share of land in his favour. Held: By consenting to the transfer A has lost his right of pre-emption in respect of the suit land. A is, therefore, estopped not only against the vendor and Lhe4vcndec but also against a rival pre-emptor. Md. Ali Khandakar Vs. Haji Mokshed Ali Khan, (1970) 22 DLR 449. —Petitioner purchased the disputed property in a sale held in execution of a certificate. The opposite party claiming to be the co-sharer tenant of the holding by inheritance filed an application for preemption of the disputed property. Held: The opposite party is entitled to preempt the land under section 96 of the EB State Acquisition and Tenancy Act. Md. Amjad Hussain Talukdar Vs. Basirannessa Bibi (1970) 22 DLR 489 —Question relating to jurisdiction— statutory right of pre-emption not liable to be defeated by question of jurisdiction. The statutory right of pre-emption, if otherwise available to opposite party No. I is not liable to be defeated by reason of an erroneous decision given by the Court on the question of jurisdiction. For it is an universally by recognized principle that the Court will not permit an injustice being done to any person by reason of an erroneous order made by it, and when the erroneous order is reversed, the Court will restore the parties to the position which they would have otherwise occupied but for the erroneous order. Abul Hossain Vs. Pulin Behari Sikdar (1920) 22 DLR 535. —Court’s pecuniary jurisdiction. Determination of pecuniary jurisdiction— Amount of consideration money or the value of the transferred holding as stated in the deed of transfer determines the valuation of the application for preemption and its forum. Abul Hossain Vs. Pulin Behari Sikdar (1920) 22 DLR 535. —Pre-emption in respect of non-agricultural land is only possible under section 24 of the E. B. Non-Agricultural Tenancy Act—Provision of section 96 of the EBSAT Act not applicable to such case. The question is whether an application for preemption under section 96 of the Act in respect of non-agricultural land is maintainable. The petitioner as owner of a land contiguous to the land under pre-emption, filed the application under section 96 of the East Bengal State Acquisition and Tenancy Act. The land of which pre-emption is sought is a non-agricultural land. Held: Pre-emption in respect of nonagricultural land can be claimed only under the provisions of section 24 of the Non-Agricultural Tenancy Act and not under 96 of the State Acquisition Act. Section 24 of the East Bengal Non-Agricultural Tenancy Act has made specific provisions for preemption of lands which are non-agricultural lands. Forman Ali Howladar Vs. Helaluddin Pashari (1968) 20 DLR 1197. —Pre-emption under section 96 relates to raiyati holding. As all the co-sharer tenants of the raiyati holding concerned are required to be impleaded even in an application for pre-emption under section 96(1) by a contiguous owner, the clear inference is that the land liable to be pre-empted by the contiguous owner must be the land pertaining to a ralyati holding. Forman Ali Howladar Vs. Helaluddin Pashari (1968) 20 DLR 1197. —Homestead within a municipality or nonagricultural land cannot be pre-empted under section 96 of the Act by a contiguous owner of the land— Purpose for which the land was leased out is the determining factor whether it is agricultural or nonagricultural land. Character of land is determined by the purpose for which the lease is taken. Deed of settlement is - therefore a document of great importance for determination of the character of land. In the present case it was stated in the lease-document that the lessee shall be able to construct pucca structure, buildings and also utilize the same for gardening and such other purposes. The tenancy therefore, as originally created comes within the meaning of ‘homestead’ as defined in section 2(14) of the Act. A homestead land cannot be a raiyati land (agricultural land) even if some part of it is used for “purpose connected with agriculture”. Section 96 of the Act lies down that the right of pre-emption is available only in respect of agricultural land. There is specific provision for preemption. of non-agricultural land in the East Bengal Non-Agricultural Tenancy Act. Under that Act a contiguous owner cannot claim right of preemption. Section 96 of the Act is confined to agricultural land and therefore a right of pre-emption under this section cannot be claimed in respect of a homestead land within a Municipality. [EB Nonagricultural Tenancy Act: (XXIII of 1949)]. Mst. Lutfun Nahar Vs. Syeeda Hashmat Ara Begum (1969) 21 DLR 633. —Pre-emption cannot be claimed under section 96 in respect of homestead land (Chandina) within a Municipality. Abdul Khaleq Vs. Jadav Chandra Mali (1968) 20 DLR 562. —Transferor of the land is not a necessary party in a pre-emption case. In a Suit for pre-emption the co-sharers are made parties in order to enable them to exercise their similar right if they so desire. The transferor of the property is no doubt a co-sharer of the properly transferred but he cannot like other co-sharers claim for pre-emption in respect of the property transferred by him. So for determination of the case the transferor may be a proper party but not a necessary party in the suit for pre-emption. Non inclusion of a transferor of a land sought to be pre-empted will not, therefore, liable the suit to be dismissed for defect of party. Ruhul Amin Mestory Vs. Fazar Banu (1969)2 1 DLR 647. —One of the several co-sharers is entitled to pre-empt to the extent of his own share in a preemption case. Eleven co-sharers claimed pre-emption in respect of the land transferred. The trial Court granted the prayer for preemption but the lower appellate Court dismissed the whole pre-emption case. As against this order of dismissal of Out of eleven co-sharers moved the High Court in revision. High Court held the order of the Munsif but held that the petitioner before the High Court is entitled to preemption only to the extent of his own share and nothing more. Ibid. Ss. 96 and 89(4)—A notified co-sharer tenant may apply for pre-emption within four months from the date of service of the notice and a non- notified co-sharer tenant as well as tenants having lands contiguous to the land transferred for whom no provision has been made for service of notice of the transfer may apply for pre-emption within four months of the date of knowledge of the transfer— Question of knowledge of the transfer is immaterial in respect of a notified co-sharer tenant. Syed Ali Vs. Abdul Khaleque (1969) 21 DLR 463 Sec. 96—Identifier of the executants of a document not supposed to know the contents thereof. Habibur Rahman Vs. A Waded (1969) 21 DLR 382. —Right of pre-emption is a statutory right— Joint deposit of consideration—Homestead when part of a holding—Improvement effected on that land. Right of pre-emption under section 96 of the State Acquisition and Tenancy Act is a statutory right and is to be exercised within the scope of the statute itself. There is no embargo in the State Acquisition and Tenancy Act that the right of preemption shall stand forfeited if a disqualified person is joined with the pre-emptor in an application for pre-emption. A joint deposit of consideration money does not frustrate a right of pre-emption. The homestead being a part of the holding of a raiyat is not excluded from the operation of section 96 of the Act. Improvement made by the pre-empted does not create a clog to the right of pre-emption and does not alter the nature of the transfer. Asiruddin Sk. Vs. Serajuddin Talukder (1978) 30 DLR 75. —Sale of the land in dispute took place on 7.4.69. On 1.8.69 a co-sharer applied for pre-emption in respect of the land sold. The vendor thereupon produced a reconveyance deed executed on 26. 7. 79 selling the same land back to him on the basis of oral agreement which was however registered on 5.8.69. Held: The application for pre-emption must fail as the land had already been reconveyed to the original vendor. Upendra Chandra Roy Vs. Janab Ali (1977)29 DLR 229. —Partial pre-emption of a holding not permissible. In section 2(13) of the Act the term holding has been defined to mean a parcel or parcels of land or an undivided share thereof, held by a raiyat or an under raiyat and forming the subject of a separate tenancy. It is undisputed that partial pre-emption of a holding or a share thereof which has been transferred is not permitted in law. The pre-emptor must pre-empt the entire land of the holding or portion thereof which has been transferred. Aktamunnessa Vs. Habibullah (1976)28 DLR 400. —Three separate plots of land were transferred by a deed of sale. A tenant holding land contiguous to the land transferred applied u/s. 96 for two out of three plots averring that these two plots are contiguous to his land. The Court on evidence found that only one plot was contiguous to the applicant’s land and allowed pre-emption of that plot only. The High Court upheld this decision over-ruling the contention that this will lead to partial preemption. Sreemati Monkhushi Das Vs. Abdus Sobhan (1977) 29 DLR 195. Division of a holding u/s 88 UT Act leaving out some co-sharers—Their right not affected. A division of a holding effected u\s 88 BT Act leaving out some of the co-sharers not a valid division—Pre-emption application by co-sharers who had been left out in s. 88, division cannot be defeated—No presumption against them that they produced no rent-receipt in respect of the holding. Abdus Salam Vs. Md. Nurul Islam (1975) 27 DLR 37. —Sale of the land in dispute took place on 7.4.67. Right accrued under section 26F, BT Act not destroyed under section 96. Begum Asia Rahman Vs. Abdul Bhuiyan (1974) 26 DLR (SC) 58. —Onus is on the person who seeks to repurchase the land sold to show that the area of lands in his possession does not exceed the maximum he is entitled to retain under sec. 90. Nayeb Ali Vs. Akhtar Rahman (1977) 29 DLR 153. —Court’s judgment should record a finding when allowing an application for pre-emption that the applicant is co-sharer or a tenant holding contiguous land. Ibid. —Court must also record a finding that the person who seeks pre-emption is entitled to so preempt on the basis of sec. 90. Ibid. —Between the dates of filing of the- application for pre-emption, and its final disposal the vendor filed a suit for specific performance of contract against the transferee on the ground that at the time of the transfer of the holding the transferee stipulated to reconvey the property to the vendor and on that agreement obtained an ex pane decree against the transferee. Held: This being the situation pre-emption application cannot be granted. Yekub Khan Vs. Amjad Ali Khan (1977)29 DLR 164. —Seller is a necessary party in a pre-emption proceeding if after his transfer, he still remains a co-sharer in respect of the property sold by him. A seller is not a necessary party in a preemption proceeding unless it can be shown that he has still some subsisting interest in the holding after the transfer in question was made. For instance, if it is found that the vendor has some interest left in the holding even after the transfer in question and thus he is still a co-sharer in the holding, in that case there cannot be any doubt that he is a necessary party in a pre-emption proceeding under section 96 of the Act. Monohar Ali Vs. Abdul Majid (1974) 26 DLR 359. Section 96— Right of pre-emption— Waiver and acquiescence—Statutory right of pre-emption cannot be taken away by mere verbal assurance of the person having such right, unless other facts and circumstances clearly make out a case of acquiescence or waiver. Fazaruddin vs Maijuddin 44 DLR (AD) 62. Section 96— The right of pre-emption accrued to the pre-emptor is not affected by the subsequent acquisition of co-shareship by the pre-¬emptee. Abdul Baten vs Abdul Latif Sheikh 45 DLR (AD) 26. Section 96— Right of pre-emption is a heritable right—In a pending proceeding the heirs are entitled to be substituted in the place of the deceased pre-emptor so as to proceed with the case. Inu Mia and others vs Mokhlesur Rahman & others 45 DLR (AD) 171. Section 96— Principle of contiguity— Pre¬emption in respect of two plots transferred when cannot be allowed—Admittedly the pre-emptor 's land, plot No. 2575, is contiguous to plot No. 2574, but it is not contiguous to plot No. 2573. If both these plots were closely contiguous to each other and formed a compact block of land, then only the principle could be applied. Jahiruddin Mollah vs Hosne Ara Begum 45 DLR (AD) 118. Section 96— Hardship to purchaser of land¬—It is a great hardship to be deprived of the case land without being paid the price prevailing at the time of execution and registration of the disputed sale deed. But section 96 of the State Acquisition and Tenancy Act having not provided relief for such circumstances it is not within the power of this Court to mitigate such hardship. Lal Chand Sardar vs Abdul Huq Howlader and others 47 DLR 401. Section 96— Reconveyance made during pendency of a pre-emption proceeding cannot take away the right of pre-emption of the co¬sharer. Khorshed Ali and another vs Aftabuddin and others 47 DLR 607. Section 96— To reveal the truth whether a transfer in question is really sale or not, in a pre¬emption proceedings can be looked into so that law cannot be violated or broken down by the unscrupulous person in the society. Baseruddin Pramanik (Md) vs Golapjan Bewa 48 DLR 137. Section 96— Homestead is included within agricultural holding and, as such, it is pre--emptible. Muslim Halder (Md) vs Hajrat Ali Halder & others 48 DLR 175. Section 96— Since the Khatians are different the pre-emptor cannot be held to be a co-sharer in the case holding and as such she is not entitled to pre-emption. Fatema Bibi vs Sree Manik Lal Somaddar & others 50 DLR (AD) 97. Section 96— Suit-holding being homestead situated in the rural area is an agricultural land pre-emptible under section 96 of the Act. Abdul Khaleque vs. Abdur Noor and others 49 DLR 74. Section 96— lt is inconceivable as to why for non-deposit of the improvement cost at the time of filing of the pre-emption case, which is yet to be determined by the Court on taking evidence, pre-emption could be refused. Abul Kalam (Md) and others vs Md Shamsuddin 49 DLR 502. Section 96— Section 96 is confined to agricultural land and, therefore, a right of pre-emption under this section cannot be claimed in respect of homestead land within a municipality. Mantu Faraji alias Jamal Faraji and others vs Mahiuddin Khan 50 DLR 147. Section 96— The statutory right of pre¬emption cannot be defeated by a casual plea of waiver and acquiescence unless a clear case of estoppel is made out by cogent and convincing evidence and unless by conduct the pre-emptor is proved to be in loco parentis with the pre-emptee and he has taken an active part in bringing about the disputed transfer. Tahera Khatun Bibi and others vs Abdul Jalil Mandal 51 DLR 134. Section 96— The principle as to deposit is not rigid and it is not mandatory that the entire deposit, both the consideration money and compensation, should be paid before filing of the case. Abdus Sobhan Sheikh vs Kazi Moulana Jabedullah and others 52 DLR 289. Section 96— Since the order of amendment relates back to the date of filing of the case, the instant case is not barred by limitation as it was filed originally within the statutory period of 120 days. Abdus Sobhan Sheikh vs Kazi Moulana Jabedullah and others 52 DLR 289. Section 96— Non—Agricultural land means a piece of land in joint possession and enjoyment without partition which may form the tenancy or a portion of tenancy. Syed Sad Ali vs Bidhan Chandra Dev and ors 52 DLR 609. Section 96— Subsequent becoming of co¬-sharers by inheritance during pendency of the case cannot alter the character and status of the original pre-emptor. Momtazuddin Sarker and others vs Abdur Rob and others 53 DLR (AD) 67. Section 96— Claim of Pre-emption¬—Estoppel—The petitioner was not only aware of the transfer made by his own brother but he had also given consent to the transaction having involvement in the negotiation. He may be held estopped from enforing his right of pre-emption. Aumullaya Chandra Haldar vs Md Mohsin Ali Mandal & ors 54 DLR 500. Section 96— While deciding an application for preemption, the Court cannot go behind the intentions of the parties in executing the deed of the transfer. Any evidence to vary the terms of such deed is barred under the provisions of section 91 of the Evidence Act. Sazeda Khatun vs Asad Ali and others 54 DLR 285. Section 96— Pre-emption—Limitation—The pre-emptor claimed to have knowledge of the transfer of the land after six and half years of the transfer. He offered no explanation for such a late knowledge nor did he explain the source of his knowledge of the transfer. So, his claim is not credible. Madinullah Miah vs Md Abdul Mannan & anr 54 DLR 507. Section 96— The defect was brought to the notice of the pre-emptor by the pre-emptee at the earliest opportune moment and yet the pre-emptor took no step to amend his plaint and make all the co—sharers of the 'case holding' parties in the case. The Subordinate Judge, when he found defect of parties, ought to have dismissed the case, instead of remanding it to the Court below. Madinullah Miah vs Md Abdul Mannan & anr 54 DLR 507 Section 96— Order XLIII, rule 1 of The Code contains provisions for appeal against an order passed in a suit. Order XLIII, rule l(c) does not provide for an appeal against an order rejecting a petition laid under Order IX, rule 9 of the Code directed for restoration of a pre-emption •proceeding on setting aside order of dismissal. Haripada Mandal vs Bidhan Chandra Mondal 55 DLR 515. Section 96— In a pre-emption case the trial Court is not precluded from determining the petitioner's prima facie right in the case holding acquired through the kabala produced in Court. Badiul Alam being dead his heir Fazlul Karim vs Md Nurul Islam 55 DLR 517. Section 96— In a pre-emption case when the case holding does not appear to be a mortgaged property or charged for mortgage sale, such holding even if sold in execution of any money decree, any alienation by the judgment debtor does not come within the purview of the doctrine of lis pendens in absence of the proof of service of notice under Order XXI, rule 54 of the Code upon the alienor or the alienee as the case may be. Badiul Alam being dead his heir Fazlul Karim vs Md Nurul Islam 55 DLR 517. Section 96— Right of Pre-emption accrues after transfer of land and statutory right of preemption cannot be taken away by mere verbal assurance of the person having such right unless other facts and circumstances clearly make out a case of acquiescence or waiver. Iqbal Hossain Talukder (Md) vs Md Joinal Abedin Talukder and 76 ors 55 DLR 604. Sections 96, 96(10)(c)— A deed of Hiba-Bil-¬Ewaj in exchange of Jainamaj, Tajbih and the Holy Quran is not a transfer for any pecuniary consideration. Such a transfer in a holding by a deed of Heba-Bil-Ewaj within three degrees of relationship by consanguinity between the donee and the donor, is exempted from pre-emption. As a sequel to it any subsequent purchase by the donee of any land in the holding is outside the purview of pre-emption. Jinnat Ali (Md) vs Md Abdu Bakkar Siddique and others 55 DLR 92. Sections 96 & 117— Unless it is satisfactorily proved that the parent jama has been separated in accordance with the provisions of section 117 of the SAT Act on proper service of notices upon all the co—sharers, the parent jama remains intact and a co-sharer to the holding continues to be a co-sharer to it and his right of pre-emption remains unaffected. Tofazzal Hossain (Md) and others vs Momtaz Begum 52 DLR 223. Section 96(1)— "Knowledge" as referred to in sub—section ( 1) of section 96 of the Act means and includes a definite and complete knowledge in order to qualify the petitioner to file pre¬emption application. Abdul Sattar & another vs Osimuddin & others 42 DLR 24. Section 96(1)— Limitation referred to in sub¬section (1) of section 96 not applicable when a pre-emptor makes an application for pre-emption against a purchaser. For the purpose of impleading a remaining co-sharer in a proceeding under section 96 of the Act the period of limitation as provided in sub¬section (1) of section 96 of the State Acquisition and Tenancy Act in filing an application for pre¬emption by pre-emptor against a purchaser for pre—empting the latter's kabala shall not apply. Abdul Barek vs Yarunnessa 37 DLR 151. Section 96(1)— There being no evidence of record by the pre-emptee challenging the date of knowledge of the pre-emptor about the transfer of the land, the contention that the application for pre-emption is barred by limitation is untenable in law. Jafar Ali vs Hushiar Ali 46 DLR (AD) 187. Section 96(1)— Choice of some holdings for pre-emption out of several holdings sold, whether it will be a case of partial pre— emption— The effect and purport of section 96( 1) of the SAT Act is not that the right of pre-emption accrues only holding—wise but also transaction—wise. The clear intention of the Legislature was to confer a right of pre-emption holding—wise and not transaction¬wise. In the context of section 2(13) of the SAT Act read with section 96(1), the right of pre¬emption has not been conferred with reference to the number of properties transferred by a particular deed. A distinct right has been conferred in respect of a distinct holding. Birendra Nath Chakraborty vs Subal Chandra Biswas 43 DLR 276. Section 96(1)— Decision of the Courts below allowing prayer for pre-emption to the extent of shares of fictitious sellers is illegal. Solaiman Ali Sheikh (Md) and others vs. Abu Bakar Siddique Sheikh and others 49 DLR 477. Section 96(1)— When pre-emptor exercises his right of pre-emption after a long lapse of time a heavy duty is cast upon him to prove his knowledge about the impugned transfer by most convincing evidence so as to circumvent the apparent bar of limitation. Habibur Rahman alias Md Habibur Rahman and another vs Mobarak Ali Rari and others 50 DLR 193. Section 96(1)— There being no evidence on record challenging the date of knowledge of the pre-emptor about the transfer of the land, the contention that the application is barred by limitation is untenable in law. Abdur Rashid Mia (Md) vs Md Hasem Ali Mia 56 DLR 155. Section 96 (1)(2)— Once the pre-emptor files pre-emption application within the statutory period of 4 months such application is not liable to fail for non—impleading of necessary parties within the period of said 4 months provided such necessary parties are impleaded at any stage of the proceedings. Abdus Satter and others vs Abdun Noor and others 49 DLR 414. Section 96(1)(4) as also clause (b) of section 96 (6)— Court's direction to make deposit in case of rateable pre-emption. Where the transferee is also an applicant for rateable pre-emption despite the fact that he is entitled to receive back the money he has paid he must make the deposit proportional to the ratable pre-emption, but the court may grant an exemption regarding his deposit in his case. Abdul Hadi Bepari vs Safaruddin Mondal 38 DLR (AD) 265. S. 96(I)—Time for application by co-sharer. Sub-section (1) of section 96 of the Act requires an application for pre-emption to be made by a co sharer within four months from the date of knowledge of the sale when no such notice was issued. Nekjan Bibi Vs. Sarojan Bibi (1967) 19 DLR 655. —Right of pre-emption when accrues. Right of pre-emption does not accrue on the date of knowledge but on and from the date of the transfer. The period of 4 months referred to in section 96(1) of the State Acquisition and Tenancy Act is the limitation prescribed for exercising the right by a tenant holding land contiguous to the land transferred from the date of the knowledge of such transfer. Habibur Rahman Vs. Satish Ch. (1977) 29 DLR 178. —Petitioner seeking pre-emption is to prove the date of his knowledge of transfer that his petition is within time. Ibid. —Right of pre-emption accrues not on the date of execution of the deed but on the date of its registration. A sale-deed in respect of a portion of a holding in favour of A was executed on 20.2.59 but it was registered on 2.8.65. Another sale-deed in respect of another portion of the same holding was executed in favour of B on 10.3.61 and registered on 28.3.61. In a contest over the claim of pre-emption between A and B, question arose who is the earlier purchaser of a portion of holding so as to entitle him to maintain an application for pre-emption under section 96 of the Act. Held: Right of pre-emption accrues not on the date of execution but on the date of registration of the document and hence in the present case B acquired the right of pre-emption of the land sold to A inasmuch as B’s document was registered in 1965 though the execution of A’s deed as in 1959 and that of B’s deed was in 1961. Abdur Rahman Vs. Baser Ali (1969) 21 DLR 599. —Pre-emption—Holding consists of several plots—One co-sharer transfers his share in all plots—Other co-sharer must apply for pre-emption in respect of all plots. If a particular holding comprises several plots, belonging to two-or more co-sharers, and if one of the co-sharers transfers his share in all the plots of the holding to a stranger purchaser, the remaining co-sharers in that case, shall have to apply for preemption with respect to all the plots otherwise it will amount to partial pre-emption. Janab Ali Sardar Vs. The Controlling Authority (1972) 24 DLR 186. —In several districts (see the body of the judgment) by virtue of government notification section 96 becomes operative with effect from 1.8.63—All transfers before this date, in respect of pre-emption rights in these districts, will be governed by section 26F, Bengal Tenancy Act. Tamoshi Bewa Vs. Janu Shah (1973) 25 DLR 397. —Application for rateable pre-emption u/s. 96(4) not possible unless application u/s. 96(1) was first made. Haji Wahab Ali Vs. Kadam Ali (1962) 14 DLR 204. S. 96(1)—Preemption coming under first part and that coming under 2nd part of s. 96(1)-Requirement that has to be met in each case of pre-emption. In a case of pre-emption coming under the first part the pre-emptor is required to establish his locus standi by showing that he is a co-sharer tenant of the holding. In such a case rule of partial preemption has been applied. In a case of pre-emption coming under the second part of sub-section (1) of section 96 the tenant is not required to meet the same test. In case of tenant’s right of pre-emption falling under the second part, the pre-emptor is required to establish that he has land contiguous to the land transferred. The expression holding land contiguous to the land transferred cannot be suetched to support the view that even in such a case the preemptor is required to include in the application for pre-emption also the lands to which he does not hold contiguous land and implead all the tenants holding contiguous lands to non-contiguous lands. Akhtarun Nessa Vs. Habibullah (1979) 31 DLR (AD) 88. —Preemption falling under 2nd part of sub-section (1), Test—Contiguity of the land sought to be pre-empted. A pre-emptor coming under the second part of sub-section (I) of section 96 cannot maintain his application for pre-emption for the land transferred to which he has no contiguity. According to subsection (5) (b), in such an application only those tenants holding lands contiguous to the land sought to be pre-empted are to be impleaded; and tenants holding lands contiguous to other lands transferred under the kabala but not subject to pre-emption, are not required to be impleaded. Sub-section (5) (b) removes any doubt that there might be. Akhtarun Nessa Vs. Habibullah (l979) 31 DLR (AD) 88. Non-agricultural land and pre-emption. —Pre-emption in respect of non-agricultural land is only possible under section 24 of the E.B. Non-Agricultural Tenancy Act. Provision of section 96 of the EBSAT Act not applicable to such case. Forman Ali Howlader Vs. Helaluddin Pashari (1968) 20 DLR 1197. —The petitioners were allowed to exercise their right of pre-emption in respect of certain nonagricultural lands sold away by their co-sharers to a third party but the first appellate Court disallowed it, on the ground that the land had been acquired by the Provincial Government and the mere deposit of money would not be enough to cover the requirement of section 96. Held: As the land is not used for cultivation, the petitioners do not come within the definition of ‘raiyat’ within the meaning of section 96 of the EBSAT Act, 1950. 10 PLD (Dac) 1018. —Homestead within a municipality or nonagricultural land cannot be pre-empted under section 96 of the Act by a contiguous owner of the land— Purpose for which the land was leased out is the determining factor whether it is agricultural or nonagricultural land. The tenancy in the present case as created comes within the meaning of “homestead” as defined in section 2(14) of the Act. A homestead land cannot be a raiyati land (agricultural land), even if some part of it is used for purpose connected with agriculture.” Contiguous owner cannot claim right of pre-emption. Section 96 of the Act is confirmed 10 agricultural land and therefore a right of pre-emption under this section cannot be claimed in respect of homestead land within a Municipality. Mst. Lutfun Nahar Vs. Syeeda Hashmat Are Begum (1969) 21 DLR 633. —Pre-emption cannot be claimed under section 96 in respect of homestead land (Chandina) within a Municipality. Abdul Khaleq Vs. Jadav Chandra Mali (1968) 20 DLR 562. (Reversed by 27 DLR (AD) 114. —Several holdings—If by one document lands of several holdings to which the applicant is a co sharer-tenant are sold—one application for preempting the lands of all the holdings is maintainable if the applicant’s claim is not barred otherwise. Hajee Majardullah Sowdagar Vs. Nurul Hague (1971) 23 DLR 68. —One application for pre-emption was filed with regard to three independent sales of several holdings to which the applicant was a co-sharer tenant. Held: The application is maintainable if it is not barred by limitation and not also barred otherwise. Ibid. —Partial pre-emption The right of pre-emption is given to the co sharer under section 26F of the Bengal Tenancy Act with reference to ‘the holding,” that is to say, that the right accrues holding-wise. It must necessarily follow that even if there has been a sale of several holdings by one transaction and by a single document, a co-sharer has a right under the aforesaid section, in respect of a particular holding covered by the same document and of which he is to be a co-sharer. It would be a misnomer to describe it as a partial transaction. The right conferred upon a co-sharer under the provisions of section 26F of the Bengal Tenancy Act is a distinct holding. A prayer may be made in one application relating to two distinct holdings. Conversely, two distinct applications may be made in two different periods. Mosammat Asimon Nessa Vs. Md. Akbar Ali Sheikh (1967) 19 DLR 659. The expression ‘partial pre-emption’ is to be understood with reference to the definition of ‘holding’ read with the provisions of section 96 of the Act and not with reference to the number of properties transferred by a particular deed. If a particular holding comprises several plots, for example, belonging to two or more co-sharers, and if one of the co-sharers transfers his share in all the plots of the holding to a stranger-purchaser, the remaining co-sharer or co-sharers, in that case, shall have to apply for pre-emption with respect to all the plots; otherwise, it will amount to partial preemption and such partial pre-emption cannot be allowed because a co-sharer cannot be allowed to pick and choose arbitrarily. Tamizuddin Vs. Guljan Bibi (1974) 26 DLR 95. Contiguous land owner applied for pre-empting one piece adjacent to it. Three separate plots of land were transferred by a deed of sale. A tenant holding land contiguous to the land transferred applied u/s 96 for two out of three plots averring that these two plots are contiguous to his land. The court on evidence found that only one plot was contiguous to the applicant’s land and allowed pre-emption of the plot only. The High Court upheld this decision over-ruling the contention that this will lead to partial pre-emption. Sreemati Monkhushi Vs. Abdus Sobhan (1977) 29 DLR 195. —Pre-emption of a part or share of holding when its price is mentioned separately in the kabala— allowable. Diam Hossain Vs. Haran Das (1961) 13 DLR 283. —Application for pre-emption shall have to be filed within four months of the date of knowledge. Provisions of section 96 are procedural laws. Application by a non-notified co-sharer for prescription in respect of a transfer, which took place before section 96 of the Act came into force but filed after the said date. Held: The right of pre-emption of the co sharers has been re-enacted in s. 96 of the Act and a person having no notice of the transfer has to apply within 4 months from the date of his knowledge. This is a procedural law and this being so the provisions of s.96 will apply to the case of a co-sharer not served with notice and if he does not come to the court within four months of the date of knowledge his application will be dismissed. Hazzat Ali Vs. Imamuddin Bapari (1961)13 DLR 819. —Expiry of the time limit dates from the time of knowledge. Impleading one as a party when time is expired does not extend the time limit. Syed Abdul Karim Vs. Harendra Chandra Dhupi (1962) 14 DLR 847. —If a party does not apply for pre-emption within the prescribed period he loses his right to preemption. A case of pre-emption does not abate if such a person is not impleaded. If the right of parties seeking pre-emption u/s 96(1) becomes unenforceable by the date of presentation of the application for pre-emption on account of the lapse of the period of limitation the suit for preemption does not abate if they are not made parties to the suit. Benodoni Das Vs. Matilal Sikder (1969) 21 DLR 262. (Reversed by 28 DLR (AD) 5 which was overruled by 33 DLR (AD) 113). —When the original pre-emption fails on the ground of limitation the co-applicant’s fails for pre-emption (according to their share) under section 96(4) though made in rime, not sustainable. If the first application for pre-emption by a co. sharer tenant is made after the expiration of the periods of limitation it will not be a vali4 application within the meaning of opening words of subsection(4). A co-applicant is entitled to pre-emption only when the first co-sharer petitioner has applied with the periods of limitation u/s 96(1). Although the two co-applicants in the r’ case applied within the two months of the date if the service of notice of the application u/s 96(4) they are not entitled to the benefit of proportionate pre-emption. Bijan Bala Chowdhury Vs. Maniruddia Biswas (1972) 24 DLR 170. General By consenting to a transfer made in pursuance of a compromise decree a person loses his right 01 pre-emption altogether. In pursuance of a compromise decree passed 11, suit for specific performance of contract, X transferred certain land to A and B (the co-sharer tena by purchase in the disputed plot) by a resisted deed Ext. Thereupon, A filed an application for preempting B’s share of land in his favour. Held: By consenting to the transfer the purchaser of the land has lost his right of pre-emption in respect of the suit land. A is, therefore, estopped not only against the vendor and the vendee but also against a rival pre-emptor. Md. Ali Khandakar Vs. Haji Morshed Ali Khan (1970) 22 DLR 449. —The statutory right of pre-emption if otherwise available to opposite party No. 1, is not liable to be defeated by reason of an erroneous decision given by the Court on the question of jurisdiction. For, it is an universal recognized principle that the Court will not permit an injustice being done to any person by reason of an erroneous order made by it, and when the erroneous order is reversed, the Court will restore the parties to the position which they would have otherwise occupied but for the erroneous order. Abul Hussain Howladar Vs. Pulin Behari Sikdar (1970) 22 DLR 535. —Right accrued under section 26F B.T. Act not destroyed by section 96. Begum Asia Rahman Vs. Abdul Basir Bhuiyan (1974) 26 DLR (SC) 58. General—Court’s pecuniary jurisdiction. Amount of consideration money or the value of the transferred holding as stated in the deed of transfer determines the valuation of the application for pre-emption and its forum. Abul Hussain Howladar Vs. Pulin Behari Sikdar (1970) 22 DLR 535. Land sold in execution of a certificate—Co-Sharer is entitled to preemption. Petitioner purchased the disputed property in sale held in executiOfl of a certificate. The opposite party claiming to be the co-sharer tenant of the holding by inheritance filed an application for pre-emption of the disputed property. Held: The opposite party is entitled to preempt the land under section 96 of the EB State Acquisition and Tenancy Act. Md. Amjad Talukder Vs. Basirunflessa Bibi (1970)22 DLR 489. —Change of law pendente lite Court to give effect to it. Even though the sale-deed was not legally valid when it was executed as well as when suit in relation to the sale was filed, it would be treated as valid if during, the pendency of the suit a new law (in the present case EBSAT 4th Amendment Ordinance of 1961 permitting such transfer) comes into existence, since the Court is bound to apply the current law to its decision. Rais Ali Vs. Jabed Ali (1967) 19 DLR 510. Title Suit, when the pre-emptor not a party to it. A decree in a title suit can not affect the right of a pre-emptor when the suit was brought without impleading the pre-emptor. Pre-emptor is entitled to get the transferred right of the vendor. Meher Abjan Vs. Jalal Ahmed Howlader (1961)13 DLR 642. —A Nadabi-PatIa being merely a deed of disclaimer disclaiming any interest in the properties transferred by an earlier sale-deed is not itself a deed of transfer and, therefore, no right of pre-emption can be claimed upon the registration of such a deed of Nadàbi Patra. Simply the fact that the document was registered and ad-valorem stamp fee was paid on the document by itself can not turn a deed of disclaimer into deed of transfer. Muhammad Arabullah Vs. Durgaprasad Tribedi (1959)11 DLR 539. —Division of a holding u/s 88 BT Act leaving out some co sharers—Their right not affected. A division of a holding effected u/S. 88 BT Act leaving out some of the co-sharers not a valid division. Pre-emtion application by co-sharers who had been left out in s. 88, division cannot be defeated—No presumption against them that they produced no rent-receipt in respect of the holding. Abdus Salam Vs. Md. Nurul Islam (1975) 27 DLR 27. —Sale of the land in dispute took place on 7.4.67. On 1.8.69 a co-sharer applied for pre-emption in respect of the land sold. The vendor thereupon produced a reconveyance deed executed on 26.7.69 selling the same land back to him on the basis of oral agreement which was however registered on 5.8.69. Held: The application for prc-emption must fail as the land had already been reconveyed to the original vendor. Upendra Chandra Vs. Janab Ali (1977) 29DLR 229 —Right of pre-emption—Joint deposit of consideration money Homestead when part of holding— Improvement effected on that land. The right of pre-emption shall not be forfeited if a disqualified person is joined in a pre-emption application for pre-emption. A joint deposit of consideration money does not frustrate a right of pre-emption. Homestead being a part of the holding of a raiyat is not excluded from the operation of section 96 of the Act. Aseruddin Sk. Vs. Serajuddin (1978) 30 DLR 75. —Extent of contiguity of land is the only test for determining order of priority—Right in respect of contiguous plots as envisaged u/s. 96(5)(b). “Extent of contiguity of land” is the only test for determining the order of priority as among tenants claiming pre-emption on the ground of holding land, contiguous to the land transferred. If land transferred consists of one plot, all the tenants having land contiguous to the land under pre-emption are to be impleaded. Their right is to be determined in the manner as provided in sub-section (5)(b). In a case where land transferred consists of more than one plot, a tenant or tenants having land contiguous to the plot or plots may apply for pre-emption but in such a case, a tenant having land contiguous only to one of the plots, cannot claim pre-emption of other lands. In an application by a tenant claiming preemption on the ground of contiguity of land, such tenant may apply to the court for the holding or portion or share to be transferred to himself or themselves. Akhtarun Nessa Vs. Habibullah (1979) 31 DLR (AD) 89. —Deposit of consideration money if does not accompany the application for pre-emption but made later on—if the deposit is within 4 months from the date of registration of the deed or 4 months from the knowledge of transfer, is a sufficient compliance with law and is a valid deposit under the law. Md. Mafizuddin Sarder Vs. Md. Abdul Jabbar (1982) 34 DLR 272. —A Hindu widow having life-interest in the property is entitled to pre-emption u/s. 96(1) of the SAT Act. Notwithstanding the fact that a Hindu widow has life interest in the property in question during her life-time, she remains a full owner thereof with complete right of acquisition and dispensation subject to law. Such a widow can be safely said Lo be a co-sharer of any holding or of any property as contemplated u/s. 96 of the State Acquisition and Tenancy Act. Rai Krishna Shaha Vs. Md. Matleb Ali Pramanik (1982) 34 DLR 178. —Proviso: Prior to allowing a pre-emption application, Court not obliged to record a finding that the applicant is a cultivator and land in his possession does not exceed the prescribed limit if the application is allowed as required u/s 90. Chandu Mia Mestry Vs. AKM Wajih Ullah & ors. (1981) 33 DLR 134. —Proviso: Omission to state that the petitioner is a bonafide cultivator, but the statement that he is in possession of the land through bargadar is enough. Ibid. S. 96(1) Read with S. 90—A person seeking pre-emption u/s 96(1), if fails to state in his application what is required of u/S 90, his application must fail. In the instant case, the pre-emptor opposite party no. I did not make any averment on section 90 of the State Acquisition Act at all. He has, therefore, failed to show that he is a person to whom the transfer may be made under section 90. Since he has failed to meet one of the basic requirements of section 96(1) his application for pre-emption is not maintainable. Md. Rais Ali Vs. Imam Hussain and Ors (1981) 33 DLR 318. —From judgment of the Munsif, in a pre-emption case, appeal will lie to the District Judge. Md. Eshaq Vs. Ruhul Amin (1982) 34 DLR 342. —Co-sharer by inheritance shall have the highest priority followed by a co-sharer by purchase and thereafter a contiguous owner. Co-sharer comes first in priority over a contiguous owner. Dhirendra Narayan Das Vs. Gouranga Mohon Das (1982) 34 DLR 177. —Co-sharer by inheritance has the highest priority to claim of pre-emption in any holding. Rafiqul Alam Vs. Rahimuddin Sarkar (1982) 34 DLR 180. S. 96(1)(2)—Sub-sections (1) and (2) explained. From a plain reading of sub-section (I) of section 96 of the Act, it appears that it consists of two parts : the first part giving right of pre-emption to one or more co-sharer tenants and the second part giving right of pre-emption to a tenant or tenants holding land contiguous to the land transferred. Sub-section (2) also consists of two parts. The first part deals with an application for pre-emption by a co-sharer tenant or tenants. The second part deals with an application for pre-emption by a tenant or tenants holding land contiguous to the land transferred. In the former case all other co-sharer tenants of the holding and the transferees are to be impleaded and in the latter case all the co-sharer tenants and all the tenants holding lands contiguous to the land transferred and the transferee to be made parties. Akhtarun Nessa Vs. Habibullah (1979) 31 DLR (AD) 88. —Pre-emption right accrues on transfer of the land—All the necessary parties to the pre-emption application must be impleaded. The right of pre-emption as provided under subsection (1) of section 96 is a statutory right. The cause of action for pre-emption of any transfer accrues to the co-sharer tenants and contiguous land owners. The right of the applicant or applicants claiming to be co-sharer tenants or owner of contiguous land, is not absolute but subject to the right of other co-sharers and other holders of land contiguous to the land transferred as the case may be for proper adjudication. To give full effect to the statutory provision, all the necessary parties must be impleaded, because relief cannot be given in the absence of such party. Abdus Samad Vs. Md. Sohrab Ali (1981) 33 DLR (AD) 113. Pre-emption under section 96 relates to raiyati holding. As all the co-sharer tenants of the raiyati holding concerned arc required to be impleaded in an application for pre-emption under section 96(I) by a contiguous owner, inference is that the land liable to be pre-empted by the contiguous owner must be the land pertaining to a raiyati holding. Forman Ali Howladar Vs. Helaluddin Pashari (1968) 20 DLR 1197. —Owner of contiguous land whom to be impleaded—Sub-section (2) has two parts—Co-sharer applying for pre-emption need not implead contiguous land holders as parties, but a contiguous land owner applying for pre-emption must implead other contiguous land holders as well. Raji Wahab Ali Vs. Kadam Ali (1962) 14 DLR 204. Necessary parties—not impleaded. Suit for pre-emption abates, if necessary parties are not substituted. After the filing of the application for preemption and lapse of statutory period of limitation to pay for rateable pre-emption the co-sharer tenants and other parties concerned become un-necessary parties and as such Rule cannot be affected for not substituting their heirs. Binodini Dasi Vs. Mail Lal Sikdar (1969) 21 DLR 262. [Reversed by 28 DLR (AD) 5]. —One contiguous holder should not necessarily be contiguous holder in respect of all lands transferred—All contiguous holders of land should be impleaded as parties. Syed Abdul Karim Vs. Harendra Chandra Dhupi (1962) 14 DLR 847. Parties impleaded after the limitation period—Application for pre-emption cannot be said to be not maintainable because necessary parties were impleaded by subsequent amendment after the expiry of the period of limitation, when the application for pre-emption itself was made in time. Nekjan Bibi Vs. Sarojan Bibi (1967) 19 DLR 655. S. 96(1)(2)(3)—Limitation of four months in sub-section (1)—Parties subsequently added—Effect. Limitation of 4 months in sub-section (1) lays down the time within which pre-emption application must be made—Mere addition of parties without claiming any relief against them under sub-section (2) does not attract rule of sub-section (1) but if relief is claimed—question of limitation would be involved. Nekjan Bibi Vs. Sarojan Bibi (1967) 19 DLR 655. Sec. 96(1) and 3(b)—Tahurul Karim made an application for pre-emption u/s. 96 on the ground of his holding land contiguous to the land transferred—while this application was pending in court, Abdul Hashim, a co-sharer of the land, filed an independent application u/S. 96(1) within 4 months of the date of transfer. Hashim’s application not covered by s. 96(3)(b). “Since Abdul Hashim has an earlier and independent knowledge of the transfer,” he need not apply under sub-section (4); his application u/s. 96(1) competent. Tahurul Karim Vs. Abdul Hashem (1978) 30 DLR 8. S. 96(1)(4)—Right of pre-emption can be exercised under sub-section (I) as well as under subsection (4) of s. 96 which thus provide a twofold period of limitation. Section 96(1) provides for a period of limitation of 4 months from the date of service of notice under section 89 or within 4 months from the knowledge of the transfer in respect of a person who claims to be a co-sharer; for a person claiming pre-emption as a tenant holding land contiguous to the land transferred, the period of limitation is 4 months from the date of the knowledge of such transfer. Tahurul Karim Vs. Abdul Hashem (1978) 30 DLR 8. —Sub-section (4) of section 96 provides that the remaining co-sharers including transferee may join in a pending application. The two-fold remedy refers to the two different sources of the knowledge of the transfer and the consequently two different periods of limitation, otherwise the expression “whichever is earlier” becomes superfluous. It is, therefore evident that this is an enabling provision and does not operate as a bar to an independent proceeding under section 96(1) of the Act. Tahurul Karim Vs. Abdul Hashem (1978) 30 DLR 8. —When the original pre-emption application for pre-emption under section 96(1) fails on the ground of limitation the co-applicants’ prayer for pre-emption (according to their share) under section 96(4) though made in time, not sustainable. The words, “when the application has been made under sub-section (1)” of section 96. If the first application for pre-emption by a co-sharer tenant is made after the expiration of the periods of limitation as stipulated in sub-section (1), it will not be a valid application within the meaning of the opening words of sub-section (4). Therefore, it necessarily follows that a Co. applicant is entitled to pre-emption according to his share only when the first co—share petitioner has applied within the periods of limitation as prescribed in sub-section (1) of section 96. Since in the present case the petitioner’s application for pre-emption was filed beyond the period limitation as prescribed in sub-section (I) of section 96 it was not an application within the meaning of sub-section (4) of section 96; so, although the two co-applicants in the present case applied within the two months of the date of the service of notice of the application, they are not entitled to the benefit of proportionate pre-emption. Bijan Bala Chowdhury Vs. Maniruddin Biswas (1972) 24 DLR 170. —The expression partial pe-emption is 10 be understood with reference to the definition of ‘holding ‘read with the provisions of section 96 of the Act and not with reference to the number of properties transferred by a particular deed. If a particular holding comprises several plots. for example, belonging to two or more co-sharers, and if one of the co-sharers transfers his share in all the plots of the holding to a stranger-purchaser, the remaining co-sharer or co-sharers in that case, shall have to apply for pre-emption with respect to all the plots; otherwise, it will amount to partial preemption and such partial pre-emption cannot be allowed because a co-sharer cannot be allowed to pick and choose arbitrarily. Tamizuddin Vs. Guljan Bibi (1974) 26 DLR 95. —Contiguous land owner applied for pre-empting one piece adjacent to it. Three separate plots of land were transferred by a deed of sale. A tenant holding land contiguous to the land transferred applied u/s. 96 for two out of three plots averring that these two plots are contiguous to his land. The court on evidence found that only one plot was contiguous L the applicant’s land and allowed pre-emption of the plot only. The High Court upheld this decision over-ruling the contention that this will lead to partial pre-emption. Sreemati Monkhushi Vs. Abdus Sobhan (1977) 29 DLR 195 —Pre-emption of a part or share of holding when its price is mentioned separately in the kabala— allowable. Diam Hossain Vs. Haran Das (1961) 13 DLR 283. S. 96(1)(5)(b)—No contiguity with the land transferred, no pre-emptive right—Parties to be impleaded in cases arising out of contiguity. Akhtarun Nessa Vs. Habibullah (1979) 31 DLR (AD) 90. —If the land forms a share of a holding the preemptor is required to apply for the share only. Determination of the claim of the pre-emptor in such a case would be only on the basis of the contiguity of land and not on the basis of holding or portion or share thereof. Ibid. —Pre-emption may not be refused on the analogy of non-joinder of all co-sharers in a partition suit. Ibid. —Objection as to omission of necessary party if not taken will be treated as being waived by the party. Ibid. —‘Contiguous’, means ‘touching’. If the Government is the owner of the contiguous land, contiguity in respect of land touching the Government’s land is broken. Ahmed Hossain Vs. Basharat Ali (1980) 32 DLR (AD) 55. Specific Relief Act, 1877 When relief has been provided for is particular statute in the present case under Succession Act, discretionary power granted under section 42 of the Specific Relief Act cannot be invoked. [73 DLR (AD) (2021) 143 The High Court Division on consideration of the evidence and the materials on record found that in order to succeed in a case under section 9 of the Specific Relief Act the plaintiff has to prove his possession of the suit land prior to dispossession as alleged in the plaint and also that the suit was filed within 6 months from the date of dispossession but in the instant case the plaintiff failed to show such proof. [Ziarat Hossain (Md) vs Md Jaher Ali (Civil) 153, 59 DLR 2007/ Suit for recovery of possession Law is well settled that a suit for recovery of possession is maintainable when instituted within 6(six) months of dispossession. When it is proved that the plaintiff was in possession of the suit land wherefrom he has been dispossessed and the suit has been instituted within 6 (six) months of such dispossession, the court is bound to restore the possession in favour of the plaintiff. [Suruzzaman (Md.) Vs. Ahmed Ali and others 69-71, 13 MLR 2008) Suit for recovery of possession filed within six months of dispossession is maintainable The law is well settled that a suit for recovery of possession filed within six months of dispossession is quite maintainable. The defendants who purchased the shares of some cosharers having no possession in the suit land, cannot forcibly enter into the possession thereof by dispossessing the other cosharer in possession. His remedy lies in properly instituted suit for partition. (Maruf Hossain (Swopon) Vs. Diljan Bibi and others 196-198, 13 MLR 2008) Suit for restoration of possession In the instant suit the plaintiff proved that he had been in possession of the suit land before he is dispossessed therefrom by the defendants and he instituted the suit within six months of dispossession. The learned judge of the High Court Division held the suit is quite maintainable and the plaintiff is entitled to get the recovery of possession of the suit land. Moti Miah Vs. Ful Miah and others 279-283, 13 MLR 2008) On the date of dispossession the defendant dispossessed the plaintiff "otherwise than in due course of law". The subsequent of title, if any, by way of lease from Enemy Property Authority did not validate the illegal disposs-ession by the defendants. /Pramatha Nath Vs. Shamsur Rahman 29 DLR 347/ The words "in due course of law” in section 9 do not mean that the party against whom a suit for recovery of possession is filed must, in due course of law, be in possession as a result of the proceedings between the same parties. S Abdur Rahman Vs. Mofizuddin Bhuiya 7 DLR 335) The effect of this section, therefore, is that if a summary suit is brought within six months, the plaintiff therein who was dispossessed otherwise than in due course of law, will he entitled to be reinstated even if the defendant, who dispossessed him, be the true owner, or a person claiming under him. /Ganga Din Vs. Bakul AIR (1950) All 4071 In a suit for recovery of possession under section 9 of the Act, notwithstanding any other title that may be set up in such a suit, the person dispossessed without the consent or otherwise than in due course of law, can claim for recovery of the possession. Abdur Rouf (Md) Vs. Abdul Hamid and others 49 DLR (AD) 133] Section 9 of the Specific Relief Act does not authorise the Court to order for demolishing or removing dwelling huts or other permanent structures standing in the suit land while effecting restoration of possession. [Rokeya Begum Vs. Md. Abdur Rahman alias Ganda and others 50 DLR 2711 There is no scope of deeming in respect of possession and dispossession which are very real thing in life. In view of clear cause of action as averred in the plaint to have arisen on 1-6-96, there is hardly any scope for such academic exercise. Jebun Nessa Zaman and others l's. Hosne Ara Lili 53 DLR 941 It is contended on behalf of the petitioner that it is clearly mentioned in section 9 of the Specific Relief Act that no appeal lies against any decree or order passed under this section. In spite of that an appeal has been preferred by the learned Advocates before the learned District Judge. Jhalakati against such a decree and the latter has admitted the appeal and stayed the decree when this being a primary question of law that appeal is not maintainable and it is clear that filing the appeal and admitting the same the learned Advocates and the learned District Judge as well acted against their morality when ignorance of law cannot be a defence even by the general people and both of them thus failed to discharge their moral and professional obligation. [SAM Mahbub Elahi Vs. Md Shah Alam and others 8 BLC 484.] Explanation-Breach of contract-Compensation-The explanation to section 12 of the Specific Relief Act raised a presumption that the breach of a contract to transfer movable property can be adequately relived by compensation unless and until the contrary is proved. [Bazlur Rahman Bhitiyan Vs. BSC 34 DLR (AD) 42] Presumption under the section-Presumption under the section is that breach of contract for sale of immoveable property cannot be adequately compensated by money payment. This presumption is rebuttable and onus lies on the person who seeks to avoid it. Saru Meah Sowdagar Vs. Jahanara Begum 8 DLR 616) Onus of proof is on the transferee who purchases while there is a subsisting contract between the vendor and the plaintiff to prove bonafide purchase. Saru Meah Sowdagar Vs. Jahanara Begum 8 DLR 616 Where the suit is brought within three years of the contract, the court is competent to award a decree for specific performance of the contract directing the legal representatives of the original vendor to execute a kabala in accordance with the terms of the original kabala and have the same registered. Hafer Ahmed Vs. Obedur Rahman 7 DLR 263 Section 21 A(b): Provides for mandatory deposit of balance consideration money at the time of filing the suit for specific performance of contract Deposit of balance consideration money at the time of filing the suit is mandatory requirement of law notwithstanding the contract made prior to the amendment came into effect and in the event of failure to make such deposit the plaint of the suit shall be liable to be rejected as provided under Order 7 rule 11 (d) of the Code of Civil Procedure. [Alimuddin Bepari (Md.) Vs. Somola Khatoon and others 251-256, 14 MLR 2009] Specific performance was refused on the ground of hardship of the respondent, a widow of the late defendant, and if solatium or compensation is paid only in consideration of the present market value of the land, then the purpose of refusing specific performance on the ground of hardship will be defeated. [Abdus Sobhan vs Md Altsanullah (Civil) 801, 14 BLC 2009] Suit for specific performance of contract The appellate court below found that the plaintiffs were able to prove the execution of the bainapatra, passing of the consideration and delivery of possession of the suit land and decreed the suit. The subsequent purchasers who with prior knowledge of the contract purchased the suit land are directed to join the execution of the sale deed in favour of the plaintiffs. [Shahjahan Ali Fakir (Md.) and others Vs. Md. Bappi Gazi and others 497, 14 MLR 2009] Contract of sale cannot be enforced in favour of a vendor when he knew that he had no title to the land to be sold-A third party can in such a case be added as a party when he claims the land to be in his possession. [Bajrang Lal Vs. Akshed Ali 35 DLR 110] Dispute of title in a suit for specific performance-there is no scope for deciding the question of title of the defendant No. 1 in this suit for specific performance of contract by the buyer or to declare that defendant Nos. 2 and 3 have no title in the suit-property. Specific performance being an equitable relief Court is not bound to grant the same merely because the contract between the plaintiff and defendant No. 1 has been proved. (Silver Estate Ltd Vs. Abdul Hakim Mia 43 DLR 360) Since title of the suit property is under dispute and the defendants have proved that the disputed property was under possession of Taher Ali and then the defendants 14 and 15 have been owning and possessing the suit land by mutating their names in the SA and RS Khatians, discretional power cannot be exercised to give equitable relief in a suit for specific performance of contract. (Shamsul Haque (Md) Vs. Munsur Ali and others 5 BLC 519) Dispute of title in a suit for specific performance, there is no scope for deciding the question of title of the defendant No. 1 in this suit for specific performance of contract by the buyer or to declare that defendant Nos. 2 and 3 have no title in the suit-property. Specific performance being an equitable relief Court is not bound to grant the same merely because the contract between the plaintiff and defendant No. 1 has been proved. (Silver Estate Ltd Vs. Abdul Hakim Mia 43 DLR 360) Since title of the suit property is under dispute and the defendants have proved that the disputed property was under possession of Taher Ali and then the defendants 14 and 15 have been owning and possessing the suit land by mutating their names in the SA and RS Khatians, discretional power cannot be exercised to give equitable relief in a suit for specific performance of contract. [Shamsul Haque (Md) Vs. Mansur Ali and others 5 BLC 519) The plaintiff brought the said suit against the defendant Nos. 1-3 for specific performance of contract evidenced by the bainanama Ext 1 dated 15-11-1956. The title acquired by the defendant Nos. 2 and 3 by virtue of Exts C&D having arisen subsequent to the aforesaid bainnnama, the plaintiff could have enforced the agreement for sale against defendant Nos. 2 and 3 were not transferees for value or did not pay their money in good faith or that they had notice of the prior contract for sale. At the moment when the said suit OS No. 9 of 1959 was brought i.e. on 11-2-1959, defendant No. 1 had no subsisting interest in the disputed land as he had disposed of his right and interest in the disputed land in favour of defendants 2 and 3 and any enforcement of the contract dated 15-11-1956 against him alone and execution and registration of kabala through Court on his behalf would not create any title in favour of the plaintiff, and therefore, the plaintiff rightly impleaded the said defendant Nos. 2 and 3 along with defendant No. I for specific performance of contract as is contemplated in section 27 of the Specific Relief Act. [Abdul Khaleque Sowdagar Vs. Mohammad Fazlul Huq, 26 DLR 247] Onus of proof-Quantum of onus-Where in a suit for specific performance against a person who claims title from the vendor under a registered deed, executed after the contract sued upon, the said person claims to be a bonafide purchaser for value without notice of the pervious contract, the onus lies upon him to prove that he had no notice of the earlier contract so as to bring himself within the exception provided by clause (b) of section 27 of the Act. With regard to the question as to what should be the quantum of proof that the person claiming to have purchased the property in good faith without notice would offer, it seems that since the onus is to disprove notice, the burden is a light one and may even be shifted by a mere denial of the factum of the notice on oath. [Dula Mia Vs. Haji Md Ibrahim 8 DLR 616] Doctrine of lispendens-In a case of specific performance of contract conveyance in favour of the subsequent transferee, executed before but registered after the institution of the suit-Not hit by the doctrine of lispendens. In a case of specific performance of contract, conveyance in favour of the subsequent transferee is not affected for want of its registration provided the transferee has paid the purchase money in good faith without notice of the original contract. In such case the conveyance is not hit by the doctrine of lis pendens though it is registered after the institution of the suit. Transfer in such case is protected by the exception of section 27(b) of the Act. [Mamtazul Karim Vs. Abul Hossain 22 DLR 146.] In a suit for specific performance of contract where the courts below directed the subsequent purchasers to execute kabala in favour of the plaintiff although they were not parties to contract but the proper form of decree would be to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff and this view is being followed in our Courts for a long time which is strengthened by the judgments of the Supreme Court of India. [Ezaher Meah and others Vs. Shaher Banu and others 2 BLC (AD) 301] Although the conduct of the defendants appears to be shady in spite of that the defendant Nos. 2 and 3 cannot be hauled up in the absence of a specific case made out by the plaintiff within the ambit of section 27 of the Specific Relief Act, so as to make the subsequent transferees, the defendant Nos. 2 and 3 bound by the subsisting contract. [Naru Gopal Roy Vs. Parimal Rani Roy and others 6 BLC 323] Amendment of plaint and addition of parties-addition of subsequent transferees in a suit for Specific Performance of Contract for sale of property-Nature and character of the suit is not changed-amendment and addition of party necessary for passing an effective decree. On perusal of the plaint, written statement and the petitions for amendment of the plaint we do not find that the amendment will convert the suit into a suit for declaration of title and the entire nature and character of the suit would be changed. The learned judges, it appears, did not at all considered whether in the absence of subsequent transferees any effective decree could be made in the suits. Addition of subsequent transferees is necessary for proper adjudication of the question whether the plaintiff's case of alleged contract was genuine. If the contract is found genuine then the subsequent transfer will be subject to the decision in the suits. [City Ice and Cold Storage Limited Vs. Nitai Chandra Shaha and others, 4 BSCD 195] Enemy Property-A contract for sale of property whether can be enforced against the Custodian of Enemy Property-The Custodian of Enemy Property stepped into the shows of the owner with the power of transfer can execute the kabala in favour of the plaintiff who got decree for specific performance of contract for sale. [Rahima Aktar and others Vs. Asim Kumar Bose and others, 5 BSCD 263] Whether in a suit for specific performance of contract for sale of property, prayer for amendment of plaint by inclusion of a proper prayer for execution and registration of the sale deed also by the purchaser subsequent to the contract with the plaintiff should be allowed-Contract was executed on 22-1-1981 on which date the purchaser defendant was not in the scene and he had no interest in the disputed properties, the contract related to properties which then solely belonged to defendant No. 1-The defendant No. 2 came into the picture nearly 8 months after Unless he can claim ownership of the properties on and beginning from this date how can he be compelled to execute the sale deed on the basis of such contract-Since defendant No. 2 has already been impleaded in the suit he being subsequently transferee will be bound by the decree in the suit-The prayer for declaration that subsequent deed was void and fraudulent if allowed the plaintiff will have no ground for more grievance-Rejection of prayer for amendment of plaint by the Court's below approved. [Nurul Amin and others Vs. Md Fazlul Huq and others, 6 BSCD 2731] Non-substitution of heirs of a deceased defendant Abatement of suit Whether the suit abated as a whole-Plaintiff may obtain a decree for specific performance of contract without the deceased defendant and it will not be inconsistent with the interest of the deceased defendant or his heirs-For non-substitution of the heirs of the deceased defendant the suit abated as against the heirs only. [Ibne Jafar Shafi Ahmed Chowdhury and another Vs. Shafiul Alam Nizame and others, 8 BSCD 210] Doctrine of Part Performance-Under this section. a party may sue for specific performance of contract in writing to sell or lease out immoveable property even though it is unregistered, if he has acted in part performance of the contract. The section incorporates active equity as in England, sufficient to support independent action brought as a plaintiff-The transferee's remedy is by filing a suit for specific performance of contract for sale-The law does not give him any right to have a decree against the transferor in any other manner. [Asstt. Custodian, Enemy Property (L&B), Dacca & another Vs. Abdul Karim & ors, 2 BSCD 161] Scope of these sections of the two statutes compared and contrasted with reference to the Doctrine of Part Performance-scope of section 27A of Transfer of Property Act is much wider than section 53A of the Transfer of Property Act. Section 27A is sufficient to support independent act for specific performance and gives a right to both transferor and transferee to enforce specifically the contract by compelling registration where there is a part performance. Section 53A of the Transfer of Property Act by itself does not provide any right to ask for a decree against the owner or his successor-in-interest but gives a statutory right to retain possession. Section 27A was enacted to prevent fraud on the part of either party where there has been a part performance on the unregistered agreement for sale. [Asstt. Custodian Enenty Property (L& B) Dacca & another Vs. Abdul Karim and others, 2 BSCD 161.] Inadequacy of price-Mere inadequacy of price will not bring a case within the ambit of this sub-section. To attract this sub-section, an *inadequate' price must be an evidence of fraud or of undue advantage taken by the plaintiff. [Quazi Din Mohammad Vs. Al-haj Arzan Ali and another 47 DLR (AD) 48] In such matters circumstantial evidence as to subsequent dealing will be relevant. [Shahabuddin Vs. Saijuddin, 36 DLR 3371] In such situation a declaratory suit instead of a suit for rectification of document will be admişsible even much after a suit for rectification is barred by limitation. [Shahabuddin Vs. Saijuddin. 36 DLR 337] Mutual mistake as to description calls for rectification by filing a suit within prescribed period of limitation. [Sahabuddin Vs. Saijuddin 36 DLR 337] When the terms of a contract are embodied in a document no secondary evidence admissible except under special circumstances. [Shahabuddin Vs. Saijuddin 36 DLR 337] Rectification of the deed-Precise intention of the parties-Court of equity will reform the written statement conformable to precise intention of the parties if the real intention is misrepresented by mutual mistake or fraud. [Lalbanu Bibi Vs. Nourjan Banu 41 DLR 5191] Four conditions for the rectification of the deed to be satisfied as contemplated in section 31 of the Act. [Lal Banu Bibi Vs. Nourjan Banu 41 DLR 5191] Wrong framing of suit is no bar to the applicability of section 31 of the Act-Aggrieved party may seek relief under the provision of relevant law because of the defeat of intention of parties caused by wrong framing of suit. Further, framing of suit does not stand as a bar of the applicability of the provision of section 31 of the Act. Here plaintiff opposite party ignoring the provision of section 31 of the Specific Relief Act, i.e. rectification of the impugned deed, prayed for cancellation of the deed under consideration giving up earlier agreement reached with defendant petitioner No. 1. Since intention of the parties was defeated because of wrong framing of the suit, the aggrieved party is entitled to seek relief under the relevant provision of law. Therefore, the aforesaid decision is of no assistance to him. [Lal Banu Bibi Vs. Nourjan Banu 41 DLR 519] A failure to rectify a sale deed does not extinguish the title to the property which was really sold but not properly described in the sale deed due to mistake. [Binode Bihari Ghose Vs. Assistant Custodian, Vested and Non-Resident Property and others 50 DLR 134] As the whole document is not denied or challenged where cancellation of the document is not necessary, mere rectification is sufficient and section 42 still can come to rescue the plaintiff to get the proper relief. [Joynal Abedin Vs. Maksuda Khatun and others 3 BLC 161] Restoration of possession when dispossessed during pendency of the suit Suit for declaration of title is maintainable when the plaintiff was in possession of the suit land at the time of institution of the suit. Court is bound to restore possession where the plaintiff has been dispossessed in violation of the order of status quo during pendency of the suit. [Abdul Awal and others Vs. Nayan Chandra Das 71-74, 13 MLR 2008] In order to remove the impediment in the way of the plaintiffs to get complete relief along with the declaration the plaintiffs needed to make 4 prayer for cancellation of the document on payment of ad advalurem Court fee. The High Court Division fell into an error of law in setting aside the order of remand made by the appellate Court and restoring the decree of the trial Court without giving any chance to the appellate Court to give its decision on the merit of the case. [Chitta Ranjan Chakraborty Vs. Md Abdur Rob 49 DLR 96] The cancellation of a document is much more than a declaratory relief that it is a substantive relief and that advalorem Court fee will be necessary for such relief under section 7(IV)(C) of the Court Fees Act. [Abdul Mannan Sheikh (Md) vs Soleman Bewa (Civil) 391, 59 DLR 2007] Suit can also be filed by a person against whom instrument is void or voidable. [Md Basir 19 DLR (WP) 63] Plaint prayed for declaration that: (i) the documents relating to the property in suit were void 'ab initio' and that the defendant acquired no interest in them and (ii) that the documents were brought about by forgeries for which no consideration passed. Held: Prayers are purely for declaration only for which a fixed court-fee under Article 17(iii) of the Court-Fees Act payable. [Daibakilal Basak Vs. Iqbal Ahmed Quarishi 17 DLR 119] It is not necessary to pray for cancellation in every suit under section 39 of the Specific Relief Act. [Daibakilal Basak Vs. Iqbal Ahmed Quarishi 17 DLR 119] Suit for declaration that the instrument is not binding on the plaintiff and a suit for cancellation of instrument"-Difference. There is a difference between a suit for declaration that the instrument is not binding on the plaintiff and a suit for cancellation of an instrument. When the plaintiff seeks to establish a title to himself and cannot establish that title without removing an obstruction such as a decree or a deed to which he has been a party, then he must get that decree or deed cancelled or declared void and his suit is in substance a suit for cancellation of the decree or deed, as the case may be, even though it be framed as a suit for a mere declaration. Where a document is to be set aside or declared null and void by a person who is a party to the deed, a mere declaration would not do and cancellation of the deed is a necessary relief unless the document is void ab initio. But a person who is not a party to the deed is not bound to have it set aside or cancelled and a mere declaration that it will not affect the plaintiffs right would be quite enough. If the plaintiff is bound to have the document set aside or declared null and void the plaint must be treated as including a prayer for consequential relief; if it is not incumbent upon the plaintiff to get rid of the document the plaintiff must be treated as one for a declaration, pure and simple. [Abdul Hamid Vs. Dr Sadeque Ali Ahmed 21 DLR 507] Cancellation of document (deed of exchange here) cannot be granted where both the parties entered into the transaction embodied in the document with full knowledge. [121 DLR 6261] Prayers for an instrument's cancellation also is consequential relief, then the plaintiff will have to pay for it-But cancellation of the instrument is not indispensably necessary in all cases-A void document need not be cancelled-Where the document is ex facie void its cancellation is not necessary even if the plaintiff is party to it-Where under section 39 cancellation is found necessary the suit should not be dismissed in the absence of such a prayer but the plaintiff should be asked to pay additional Court-free. [Sufia Khanam Vs. Faizua Nessa 39 DLR (AD) 461] Void and Voidable Instrument-Where a written instrument is void ab initio the transaction is a nullity and in such a case a plaintiff is not required to have it cancelled or set aside.lt, on the other hand, the instrument is only voidable, then it is incumbent upon the plaintiff to have it cancelled or set aside under section 39 of the Specific Relief Act. [Chitta Ranjan Chakraborty Vs. Md Abdur Rob 1997 BLD 126] Applicability of Article 91 as well as Article 120-Cancellation of document under section 39 and declaration as to right to property under section 42 of the Specific Relief Act. Plaintiffs suit is for cancellation of the document on the ground that it is vitiated by fraud-Such a suit is one under section 39 of the Specific Relief Act and is governed by Article 91 of the Limitation Act which prescribes three years' limitation-Article 120 of the Limitation Act which prescribes six years' limitation has no application in such a suit. Its application to a suit under section 42 of the Specific Relief Act relates to a ground that a declaration as regards right of property has been sought. [Mono Mohini Devi Vs. Sirajuddin Ahmed Bhuiya 21 DLR 626] Cancellation of instrument when need not be prayed-Where the plaintiff is not a party to the instrument mere declaration that the instrument is void is sufficient and the plaintiff need not pray for cancellation of the instrument whether the suit falls under section 42 or under section 39. The Court below having erred in law in dismissing the suit on ground of maintainability, the suit is sent back to the trial Court for fresh hearing in accordance with law. [Sultana Begum Vs. Abul Kalam 43 DLR 177] In a suit for declaration that certain instrument is void where the Court finds that the instrument is void ab initio, the suit is maintainable without asking for cancellation of the instrument. The contention that the suit is hit by the provision to section 42 of the Act has no substance. [JAH Shamsuddin Ahmed vs. Begum Arafat 43 DLR 52] The plaintiff-respondents after having obtained a declaration as to the illegal and fraudulent character of the impugned kabala deed and also a declaration of their title to the suit land do not need any cancellation of the impugned deed, they not being parties to the impugned kabala deed. [Momtaz Begum & others Vs. Md Masud Khan 52 DLR (AD) 46] The plaintiffs having impeached the decree in the earlier suit on ground of collusion and fraud on the assertion that they are owners in possession of the suit land, they are not required to seek any further relief to their main relief of declaration. [Abdus Sukur (Md) and others Vs. Bhasani Mandal and another 53 DLR 452] If a person in possession of a land on assertion of his right, title and interest finds a decree obtained by any other person in respect of such land affecting his interest or possession, or clouding his right or title in such land, he is always entitled to have such decree adjudged or declared void. Such suit will be governed by section 39 not by section 42 of the Specific Relief Act. When such person is not a party to such decree, he does need to get the decree set aside or cancelled. Under such law, he is also not required to seek further declaration that the decree is not binding upon him or that he has got title in the suit land.[Abul Kashem Howlader Vs. Sultan Ahmed and others 9 BLC 333] On a perusal of the evidence on record it appears that both the petitioner and the opposite party No. 1 are the joint owners in plot No. 2084, consequently, the suit for simple declaration of title is quite maintainable without praying for consequential relief by way of partition as provided in section 42 of the Specific Relief Act, 1877. [Marjina Khatoon vs Shamsunnahar (Civil) 289, 14 BLC 2009] The claimed land of the plaintiff has been very specifically and properly described in the schedule of the plaint inasmuch as the boundary of 18 decimals of land has also been described in the plaint. Apart from this I have gone through the schedule of the title deeds of purchase by the mother of the plaintiffs being of the year 1943 and 1950 and also in the schedule of both the deeds I find that the schedule as given in the plaint is exactly right that of the schedule given in the title deeds. Moreover, the local investigation report submitted by the learned Advocate Commissioner also speaks of truth of claim of the plaintiff and the learned Appellate Judge has very consciously taken into consideration this aspect of the case and thus arrived at his decision for decreeing the suit. Hence without filing partition suit the present suit is quite maintainable. [Bangladesh Railway Board vs Md Atar Ali (Civil) 556, 14 BLC 2009] Civil Court under section 9 of the Code of Civil Procedure is competent to entertain a suit and can well investigate the propriety of the order or action complained of as in the present ease. Civil Courts always can assume jurisdiction to consider the malafide action of the authority even if there is ouster section or clause of any law made for special purpose. Merely because negative declaration has been sought that can be no ground to hold that the suit does not come within the ambit of section 42 of the Specific Relief Act. [Chairman, Bangladesh Water Development Board vs Md Abdur Rahman (Civil) 42, 61 DLR 2009] In a suit for declaration of title and recovery of possession, the plaintiff must prove his cause of action, in other words, his possession in and dispossession from the suit land in order to prove that the suit is within time. [Wazuddin vs Md Serujuddin (Civil) 788, 61 DLR 2009] Suit for declaratory decree In a suit for declaratory decree the plaintiff must prove his title and possession in the suit land with cogent evidence in order to get decree. He can not rely on the weakness of the defendant's case. [Nurul Islam and others Vs. Lal Miah and another 17-20, 15 MLR 2010] Presumption of jointness of Muslim family though not available when established by evidence can be valid ground In a suit where the minors were not represented and the defendant No. 1 auction purchased the ejmali land in execution of decree by the common fund of the joint family in the name of his wife, it is held that by such auction purchase the minor's interests are not affected. Therefore the plaintiff's suit for declaration of title, confirmation of possession and partition is held maintainable. [Daliluddin Sheikh being dead his heirs. [Tarn Miah Sheikh and others Vs. Alek Sheikh @ Abdul Malek Sheikh and others I-10, 14 MLR 2009] On the passing of the order directing payment of the gas bills in instalments and on disposal of the matter, the High Court Division became functus officio. Thereafter the High Court Division has nothing to do therewith and plaintiff petitioner has to face the consequence in the event of his default in the payment of the instalment. [Shahabuddin (Md.) Vs. Manager in charge, Abika Narnyanganj Titas Gas T&D Co. Ltd, and others 40-43, 14 MLR 2009] Suit for declaration of title Suit land was taken pattan through amalnama from the Ex-land lord in the name of the plaintiff by his father while he was minor. It was recorded in his name in the S.A Khatian and he paid rents. Subsequently the suit land was wrongly recorded in the name of the defendants in R.S khatian. Plaintiff established his title and possession in the suit land and as such the lower appellate court decreed the suit. The apex court held though the pattan was taken during his minority the title of the plaintiff has been perfected by long possession. [Miksar Ali Dewan (Md.) and others Vs. Dares Ali Mondal and others 105-110, 13 MLR 2008] When declaratory suit is not maintainable without seeking consequential relief Unless the plaintiff establishes his legal character and right to the suit property, his suit for mere declaratory decree that certain deeds are forged and fraudulent without seeking consequential relief by way of partition is not maintainable. [Ratan Chandra Dey and others Vs. Jinnator Nahar and others 168-171, 13 MLR 2008] Suit for declaration of title and recovery of possession of suit land Deed of transfer executed by a minor is no deed in the eye of law and as such the transferee does not acquire any right, title and interest on the basis of such deed. The trial court dismissed the suit which the court of appeal below decreed. The High Court Division as well as the Appellate Division upheld the judgment and decree of the appellate court as being perfectly justified. [Panchalipara Ehtedaya Madrassa represented by its Secretary Rustom AH Vs. Abdul Kader 256-258, 13 MLR 2008] The plaintiff-respondent, who embraced Islam, had been in uninterrupted possession of the suit land for more than twelve years and acquired indefeasible title thereto. The suit land was formerly part of their family debater property wherefrom the idol was removed and the property lost its debater character. The High Court Division set aside the judgment and decree of the court of appeal and restored those of the trial court which the apex court upheld. [Hari Thakur Deb Bigraha (Sri Sri) and others Vs Md. Abdul Hannan and others 353-356, 13 MLR 2008] Dispensing with the service of a college teacher on the ground of incompetence is not a matter covered by section 42 and so in such a case a suit under section 42 will not lie. [Chowmuhani College Vs. Md Ismail Hossain 26 DLR 10] Not only a person entitled to any legal character but also any person entitled to any right as to any property can institute a suit for declaration. [Jinnat Ali Mukhtear Vs. Abdul Majid 27 DLR 385.] Clauses 21 and 29(a) of the Chittagong University Ordinance being a bar against re-examination of an answer script the plaintiff's suit is not maintainable under section 42. From the prayer made by the plaintiff in the plaint which has already been quoted it will appear that he has asked for re-examination of the answer scripts of paper I and paper II of Advanced Accounting by another examiner appointed by Court at the cost of the plaintiff. This right has not been conferred on him by any law. On the contrary, the aforesaid clause 21 and clause 29(a) of Chapter XXXI of the university Ordinance are against that right. It is thus clear that the plaintiff has got no right to file the suit under section 42 of the Specific Relief Act. [Chittagong University Vs. Md Abdul Qayyum, 28 DLR 3231] Suit for mere declaration without a prayer for consequential relief namely, that the dismissal order is void, is maintainable. Suit for mere declaration that the order of dismissal was illegal, void, inoperative without a prayer for consequential relief is maintainable. In this view of the law the finding of the lower appellate Court to the effect that without a prayer for consequential relief plaintiffs suit for mere declaration was not maintainable is not correct. [Nazir Ahmed Vs. Province of East Pakistan 31 DLR 400] Proviso to section 42 explained It is necessary to determine the question and the nature of the bar placed by the provision and the Court, where such a bar is raised, may determine firstly, that he, the plaintiff, is able to seek a relief and, secondly, that he has not omitted to do so. The proviso does not refer to relief which is not at all necessary. It also cannot have the effect of compelling the plaintiff to sue for all the relief's which can possibly be granted. If the plaintiffs is entitled to a relief, on a mere question of some technicality, his plaint should not be thrown out. Under section 42 where consequential relief is found necessary, but has not been asked for the suit may either be dismissed or the plaintiff directed to pay additional court-fee. For relief sought by way (if cancellation of a document. a kabala or a decree, section 39 is applicable-Declaration of nullity of a document is the main and substantive relief. whereas cancellation of the instrument is a consequential relief. [Sufia Khanam Vs. Faizunnessa 39 DLR (AD) 46] If a person's right and title is clouded by an instrument he may seek a declaration under section 42 to nullify the effect of such an instrument A suit for declaration that a deed whether a sale deed or decree is void comes under section 39 of the SR Act in terms of this section-But when further prayer is added that by the said deed plaintiffs right is not affected, this falls under section 42-If his suit included the relief's that the instrument in question is void and his right has not been affected thereby and, or, the defendant acquired no right thereby, then the relief's are covered by both sections 39 and 42. [Sufia Khanam Vs. Faizunnessa 39 DLR (AD) 46] Proviso Court's discretion to make a declaration of any status or right upon a suit instituted under section 42 of the Act-Positive bar to make a mere declaration of title if the plaintiff being able to seek further relief omits to do so- Meaning of being able to seek further relief." [Trading Corporation of Bangladesh Vs. Syed Sajeduzzaman 40 DLR 406] The question arose whether the respondent was a worker under the relevant labour law or he is an employee of the Corporation governed by its Service Rules or whether his remedy lay in a grievance petition under section 25 of the Act. Leave was granted by us to consider the question whether the respondent is a worker under the relevant Labour Law or whether he is an employee of the Corporation, governed by its Service Rules, and whether his suit was hit by section 42 of the Specific Relief Act in the absence of any prayer for consequential relief. We have heard lengthy arguments of the learned Advocates for both the parties. Mr Asraful Hossain for the appellants and Mr Mahmudul Islam for the respondent. Mr Asraful Hossain has contended that the order of the respondent's dismissal itself shows that he was treated as a worker of the Mills and was dismissed by the "employer" under section 17 of the Act and, as such, his only remedy lay in a "grievance petition" before the Labour Court under section 25 of the Act. [Dosta Textile Mills Vs. SB Nath 40 DLR (AD) 45] Maintainability of suit-Plaintiffs having failed to prove their possession in the suit land, a simple suit for declaration of their title is barred. [Noor Mohammad Khan Vs. Bangladesh 42 DLR 434] The plaintiff being entitled to a decree that the suit property is not an abandoned property and the Government having disclaimed the same as requisitioned property, the latter is liable to restore its possession to the plaintiff and also to pay rent/compensation under the Requisition of Property Act for its use and occupation from 14-2-1972 till the possession of the property is restored to the plaintiff. As the plaintiff-appellant does not have title to the entire suit land the greater part of which is, in fact, an enemy and vested property, he is not entitled to a decree for declaration as prayed for-He may seek remedy by way of partition in an appropriate forum. [Md Zaher Vs. Bangladesh 42 DLR 430] It is not ascertained what is the appellant's share nor is it clear whether the 1/3rd of the suit land representing original owner Jugal Chand's share. has been included in the Vested Property case. Determination of the appellant's lawful share in the suit land is not an issue in this suit. It is a suit for declaration that the Vested Property case is illegal, collusive and void. Now that the appellant is not found to have title to the entire suit land the greater part of which is, in fact, an enemy and vested property the appellant-plaintiff is not entitled to a decree he rayed for. He may seek remedy by way of partition in an appropriate forum. Decision of the High Court Division affirming that of the Appellate Court is perfectly correct. [Nuruzzaman Sarker Vs. Seraj Mia 41 DLR (AD) 107] When prayer for consequential relief not necessary-The plaintiffs did not file the suit for declaration of their title. They have prayed for simple declaration to the effect that the judgment of the certificate proceeding bearing No. 697 and sale held thereunder is illegal, collusive, fraudulent and is not binding upon the plaintiff. So, the prayer for consequential relief is not required in the instant case. As such, the suit will not be hit by section 42 of the Specific Relief Act. What exigency of circumstances prevailed which compelled an officer of the University to institute a suit against the highest officer of the University with regard to an official act of the University has to be established before the trial Court while disposing of the suit on merits by the court concerned. [Prof MA Raquib Vs. Prof Zillur Rahman 37 DLR 83] Relief which cannot be called further reliefs within the meaning of the provision to section 42. If a plaintiff would be entitled, in some remote way, to some other relief in consequence of the declaration but which are not immediately related to the cause of action the said relief cannot be called further relief within the meaning of the Proviso to the Act and hence the plaintiff in such a case cannot be compelled by the court to ask for relief, whether he wants it or not and if the plaintiff in a given case is not in need of any other consequential relief the suit will not lie. All this would depend upon the facts and circumstances of each case and this ought to be decided at the outset and allow an amendment of the plaint if so required after an objective examination of the further relief that need be claimed. [Sarder Ahmed Ali Vs. GM Ali Boksh 37 DLR 71] Under section 42, SR Act a case will lie when the plaintiff proves that he is entitled to a legal character or right and the defendant is denying such legal character or right. [Hasmat Ali Vs. Mofizuddin Majhi 37 DLR 231] Declaratory suit as to legal character or right-section to be construed strictly-The plaintiff may ask for relief under section 42. Specific Relief Act provided that the plaintiff must at the time of the suit be entitled to any legal character or to any right to any property. Section 42 must be construed strictly. The courts are only to grant such declarations which come within the terms of that section where the plaintiff has asked for a declaratory decree, namely, a declaration that the decree obtained was fraudulent and void. Such a simple declaration could not be given within the provisions of section 42 and, as such, the suit on the face of that section has to be dismissed. [Imanuddin Rarhi Vs. Lilabati Das 32 DLR 75] ] The plaintiff was not a party to certain certificate proceedings which were against one for realisation of certain sum of money. The plaintiff instituted a suit and one of the relief, claimed in the plaint ran as follows: "The plaintiff is not liable for any money claimed under the certificate proceedings for the realisation of the said amount." Held: The relief claimed is purely declaratory which the plaintiff can seek under section 42 of the Specific Relief Act and, as such, a fixed court-fee under Article 17(iii), Schedule II of Court-fees Act is payable. [Kumudini Welfare Trust Vs. Pakistan 11 DLR 57] Service matter-Suit for declaration is not maintainable in view of the fact that till now the relationship between the parties is that of master and servant-Though the corporation has taken over the jute mill no statutory rules have been framed in order to guide the service conditions of the plaintiff and employees like him. [Bangladesh Jute Mills Corporation Ltd and others Vs. Abdul Halim Chowdhury 47 DLR 173] Plaintiffs prayer for declaration was not followed by any consequential relief and, as such, the Court committed no illegality in holding that the omission to pray for such a relief for the purpose of enforcing the declaratory decree was hit by section 42 of the Act. [Bangladesh Jute Mills Corporation Ltd and others Vs. Abdul Halim Chowdhury 47 DLR 173] Suit for declaration simpliciter in service matter is maintainable without any prayer for consequential relief. [Tomser Ali @ Md Tomser Ali Sarder as Md Nazrul Islam and others 55 DLR 151] A legal action involves determination of rights and obligations of the parties thereto. In law only a juristic person, whether natural or artificial, is capable of having a right and an obligation. It, therefore, follows that only a juristic person can maintain a suit in a court of law. Bangladesh is a juristic person by being a Sovereign State. [Principal, Barguna Darul Ulum Nesaria Alia Madrasha Vs. Secretary, Ministry of Health & ors 55 DLR 542] Law has not conferred upon a Ministry or a Department of the Government a legal personality, independent of the Government. In a suit where the name of a Ministry appears as a party, it does so as the representative of the Government or the State. [Principal, Barguna Darul Ulum Nesaria Alia Madrasha Vs. Secretary, Ministry of Health & ors 55 DLR 542] The Ministry of Health has no legal personality, independent of the Government. So, it cannot maintain a suit in its name, without an authority from the Government. It may derive its authority to proceed with a legal action from the Government. So, when the Ministry has no authority of its own to proceed with a legal action, it cannot authorise others to represent it in. and proceed with, a legal action. [Principal, Barguna Darul Ulum Nesaria Alia Madrasha Vs. Secretary, Ministry of Health & ors 55 DLR 542] Suspension of an employee pending a disciplinary proceeding is an approved measure and the Court does not generally interfere with it. But if the order of suspension is prima facie illegal and tinged with malafidie, the Court is competent to act for preventing injustice. [Bijoy Kumar Shaha Vs. DC. Chuadanga and others 55 DLR 550] Although in response to the public notice the plaintiff submitted two tenders and also deposited the required 25% deposits but since those tenders were not accepted by the Railway Department, no agreement came into existence and they had no obligation, legal or otherwise, to allot any plot of land in favour of the plaintiff. [Government of the People's Republic of Bangladesh and others Vs. Sheikh Jahangir Hossain 55 DLR 620] Since there were no agreements, suit for Specific Performance of Contract had also no basis and was liable to be dismissed. [Government of the People's Republic of Bangladesh and others Vs. Sheikh Jalzangir Hossain 55 DLR 620] The defendants being in possession of the suit land from before the filing of the suit, the plaintiff was to pray for recovery of khas possession by way of consequential relief as a suit for mere declaration is liable to be dismissed. [Abdul Hamid Mollah Vs. Md Abdul Hye and others 49 DLR 428] A declaratory decree passed in a case without any prayer for consequential relief is an "annuity". Such decree is a gain and its implementation is dependent on as to whom the decree is passed against. In the instant case the defendant being a statutory corporation, there is no reason to believe that such corporation will not implement the decision of the court. [Jiban Bima Corporation, Dhaka Vs. Mustafa Hussain & and another 50 DLR 411] Plaintiffs could have asked for either joint possession or partition as a co-sharer of the defendants in the disputed land but they did not take any such stand in the lower appellate Court or even before the High Court Division. The impugned judgment calls for no interference. [Enjaheruddin Mia Vs. Mohammad Hossain and others, 50 DLR (AD) 841] Although section 42 of the Specific Relief Act is not exhaustive and declarations independent of that provision is even permissible but a suit for declaration, would not lie when the plaintiff is neither entitled to any legal character or status nor clothed with any right. [Shafi A Chowdhury Vs. Pubali Bank Ltd and others 54 DLR 310] Suit for declaration simpliciter in service matter is maintainable without any prayer for consequential relief. [Tomser Ali @ Md Tamtser Ali Sarder Vs. Md Nazrul Islam and others 55 DIR 151] A legal action involves determination of rights and obligations of the parties thereto. In law only a juristic person, whether natural or artificial, is capable of having a right and an obligation. It, therefore, follows that only a juristic person can maintain a suit in a court of law. Bangladesh is a juristic person by being a Sovereign State. [Principal, Barguna Darul Ulum Nesaria Alia Madrasha Vs. Secretary, Ministry of Health & ors 55 DLR 542] Law has not conferred upon a Ministry or a Department of the Government a legal personality, independent of the Government. In a suit where the name of a Ministry appears as a party, it does so as the representative of the Government or the State. [Principal, Barguna Darul Ulum Nesaria Alia Madrasha Vs. Secretary, Ministry of Health & ors 55 DLR 542.] The Ministry of Health has no legal personality, independent of the Government. So, it cannot maintain a suit in its name, without an authority from the Government. It may derive its authority to proceed with a legal action from the Government. So, when the Ministry has no authority of its own to proceed with a legal action, it cannot authorise others to represent it in, and proceed with, a legal action. [Principal, Barguna Darul Ulum Nesaria Alia Madrasha Vs. Secretary, Ministry of Health & ors 55 DLR 542] Suspension of an employee pending a disciplinary proceeding is an approved measure and the Court does not generally interfere with it. But if the order of suspension prima facie illegal and tinged with malafidie, the Court is competent to act fm preventing injustice. [Bijoy Kumar Shaha Vs. DC. Chuadanga and others 55 DLR 550] Although in response to the public notice the plaintiff submitted mo tenders and also deposited the required 25% deposits but since those tenders very not accepted by the Railway Department, no agreement came into existence and they had no obligation, legal or otherwise, to allot any plot of land in favour of the plaintiff. [Government of the People's Republic of Bangladesh and others Vs. Sheikh Jahangir Hossain 55 DLR 620] Since there were no agreements, suit for Specific Performance of Contract had also no basis and was liable to be dismissed. [Government of the People's Republic of Bangladesh and others Vs. Sheikh Jahangir Hossain 55 DLR 620] Relief of declaration sought for by the plaintiff is not at all available to him when he has no legal interest in the subject matter of the suit. [Capital Tower Limited Vs. Mirpur Mazar Co-operative Market Society Limited and others 56 DLR (AD) 8] It is seen from the materials on record that order of status quo was passed on April 4, 1993 and that deed of lease was registered on April 6, 1993, but for this the document so registered would not become invalid although defendants thereby exposed themselves to legal action. [Capital Tower Limited Vs. Mirpur Mazar Co-operative Market Society Limited and others 56 DLR (AD) 8] It appears from the plaint as well as from the judgment itself that no consequential relief in the form of compensation and damage has been prayed for and such a suit is not maintainable as it is hit by section 42 of the Specific Relief Act and the suit is dismissed. [Bangladesh Jute Mills Corporation Ltd & others Vs. Abdul Halim Chowdhurti I BLC 444] As consequential relief was not prayed the trial Court instead of dismissing the suit directed the plaintiff to pay ad valorem Court-fee which was paid but no such relief was specifically stated in plaint as required under Order VII rule 7, the trial Court committed no illegality in giving the relief and the suit was not hit by section 42 of the Specific Relief Act. [Dainik Janakantha, represented by its Editor and Publisher Nazibunnessa Vs. Md Abdus Sobhan Mia and others 1 BLC 701] When the delivery of possession was taken by the defendant through Court after a contested order of redemption, section 42 of the Specific Relief Act is a bar against the plaintiff in getting a decree for simple declaration as the plaintiff failed to seek relief by way of recovery of possession. [Osman Gani Talukder Vs. Md Osman Ali Mondal I BLC 202] A third party can file a suit for declaration that he is not bound by a decree but in such a case he must show that he is entitled to get any legal character or to any right as to any property under section 42 of the Specific Relief Act but as the Courts below have found that the plaintiff has failed to prove his title and possession in the suit land the suit in such circumstances is not maintainable without a prayer for consequential relief. [Ishaque Miga and another Vs. Abdul Mazid Mollah and others I BLC 276] The plaintiff impeached the decree passed in the Title Suit No. 51 of 1997 on the ground of collusion and fraud. The trial Court has found their title and possession in the suit land and also held the judgment and decree of the earlier title suit as collusive and fraudulent- Appellate Court most erroneously reversed these findinas. In such a suit the plaintiffs are not required to seek any other relief as further relief to their main relief of declaration. Moreso, a relief for further declaration of title in the suit land as submitted does not seem to be a further relief within the meaning of the proviso to section -12 of the Specific Relief Act. [Abdus Sukur (Md) and others Vs. Bhasani Mondal and another 6 BLC 549] The contention of the learned counsel for the respondent that no relief was sought declaration of title and that against the Ekrarnama is not well founded in law since the suit has been filed against the order by which plaintiffs title to the land in suit was clouded and that no specific relief the plaintiff was required to seek for against the Ekrarnama and since the decree sought for against the order of the Land Administration Board would remove the cloud created by the order impugned and thereupon the Ekrarnama relating to plaintiffs land would have no bearing upon the land of the plaintiff. [Tarak Chandra Majhi Vs. Atahar Ali Howlader and others 8 BLC (AD) 67] The suit has been filed for declaration of jote right and title to the suit land by adverse possession in a representative character asserting possession therein and there is no provision in law either under section 42 of the Specific Relief Act or an other law including Evidence Act specifically providing any bar in filing the suit of the nature for which the plaint of the suit is liable may be rejected. [Sharfuddin Ahmed (Md) and ors Vs. Md Ala Uddin and others 8 BLC (AD) 111] Notice as required under section 152 of the Pourashava Ordinance having not been served by the plaintiff before filing of the suit it is barred under section 152 of the Pourashava Ordinance. When the suit was instituted at that time the Pourashava was in existence. On a perusal of the plaint it appears that the plaintiff has not acquired any legal character to institute the suit. Plaintiff was not even selected for the post of Vaccinator rather, she was selected only in the written examination. Hence, the plaint is rejected. [Zakia Sultana Vs. Maksuda Parvin and others 8 BLC 168] A suit for declaration in respect of rights arising out of a contract which would affect only the pecuniary relationship between the parties to the contract was held to be not maintainable. [Chairman, RAJUK vs Abdul Matin Crore (Civil) 118, 59 DLR 2007] As the terms and conditions of the service of the plaintiff are not regulated by any legal instrument he has no legal character and, as such, the declaration he sought for does not attract section 42 of the Specific Relief Act. Therefore, the suit is not maintainable. [Uttara Bank Ltd, AVP vs Shahabuddin Khan (Civil) 166, 59 DLR 2007] The plaintiffs having failed to seek recovery of khas possession in their depositions the suit was not liable to be decreed. [Puspak Kumar Roy vs Eldrin Khan (Civil) 261, 59 DLR 2007] Sections 42 & 55 Contract-Time limit and obligation, question as to-When time is made the essence of the contract under which parties thereto agree mutually to undertake certain obligations, it would be necessary to find whose failure to carry out his obligations within the time mentioned in the contract the same could not be performed. It is necessary to find whose unwillingness to perform his part of the obligation under the contract eventually led to the non-performance of the contract. In a suit for specific performance of the contract which makes time the essence of the contract, the plaintiff must succeed if his readiness and willingness to perform the obligation undertaking by him are proved. [Ram Chandra and others Vs. Md Khalilur Rahman and another; 5 BSCD 267] A party altering the status quo existing at the time of filing of the suit or proeeeding must be compelled to restore the status quo ante. [Abul Hayat Suru Vs. MA Reja 47 DLR 170] When it appears to the court that a party to a pending proceeding acts in an imperious manner and adversely affects the majesty of the court- a duty is cast upon it to take the delinquent to task by restoring at least status quo ante in respect of the subject matter in dispute. [Anwara Begum Vs. Shamsun Nahar Begum 49 DLR 364] Section 56(e) In spite of service of the order of status quo the defendants wilfully evicted the plaintiff from the suit poperty and while the Civil Court is in seisin of the matter the defendants could not have taken law in their hands and in that view of the matter the High Court Division rightly affirmed the order of the trial Court granting temporary mandatory inj-unction. [Bhawal Raj Estate Vs. Syed Md Osman Gani and others 4 BLC (AD) 10] In a suit for recovery of possession the plaintiffs were required to prove that they were in possession of the suit land before the alleged date of dispossession and that they failed to prove the story of possession followed by dispossession. [73 DLR (AD) (2021) 124] Specific Relief Act (1 of 1877) Section 22 State Acquisition and Tenancy Act Seaction 17- Retention of different classes of tenants its in the record-of-right, prepared or revised under Chapter IV of this Act was intended for completing some consequential results. SM Nasiruddin vs Zahurul Islam Chowdhury 35 DLR (AD) 230. Sections 17 and 19--Functions under these section. There are two provisions under the state Acquisition and Tenancy Act regarding preparation of the record-of-rights. Under section of the state Acquisition and Tenancy Act in 19 view of the notification of the Government under section 17 of the Act a draft record-of-rights was prepared for the purpose of acquisition of the rent-receiving interest or under the same provisions the record-of-rights that was prepared under Chapter 1 of the Bengal Tenancy Act would have been in respect of any district, part of a district revised of any local area as the Government would seem fit and necessary. The particulars which were required to be incorporated under those draft record of rights have been mentioned in the rules framed for the purpose. Haladhar Dutta vs Abdul Rob Chowdhury 36 DLR 193. Section 17(3)— The notification contemplated under sub-section (3) of Section 17 is a notification giving notice of the intention of Government to take up the preparation of new record of rights for the assessment of compensation payable for the interests acquired under the Act and has a conclusive evidence that the order has been made 'for the preparation or revision of record of rights. [Province of East Pakistan 16 DLR (SC) 667] Section 17- Non-agricultural holding comprising of eight plots recorded in seven khatians-Mutation The validity of a mutation order may not be allowed to be raised in a proceeding for pre-emption. Sree Monoranjan Basu & another vs Sree Nitya Ranjan Karmakar &, others. BCR 1987 (AD) 199 Section 19- The presumption of correctness as to CS Khatians under the Bengal Tenancy Act is not available with regard to the State Acquisition Khatian. There is no presumption of correctness in respect of State Acquisition Khatian like the one under section 103 of the BT Act. Halima Begum vs Syed Ahmed 21 DLR 854 Section 19- Mere preparation of SA or ROR Khatian and payment of rent does not create any title, SA Khatian can create presumption of possession but not of title which the CS Khatian can. Chan Mahmood and others vs Hossain Ali being dead his heirs 1 (Ka) Sekander Ali and others 3 BLC 364. Section 19- No presumption is attached to the SA record of right when RS record of right got a presumption under section 103B of he Bengal Tenancy Act but that presumption is also a rebuttable one and the defendant No. I successfully rebutted the same by producing a good number of rent receipts showing the payment of rents to the Government but the plaintiffs could not file a single rent receipt although, rent receipts cannot be said to be evidence of title but the same can be held to be evidence of possession and possession always follows from lawful title. Abdul Kader Rari and others vs Kaiser Ahmed Howlader 4 BLC 17. Section 19- Admittedly, MRR Khatian had be prepared long after the alleged kabala deeds of the plaintiffs and MRR Khatian stands in the name of original owners Sur Ali and others. The MRR Khatian got a presumption of possession, at least, at the time when the same had been prepared and the correctness of the presumption of possession did not appear to have been rebutted by the plaintiffs' side. Shamsul Alam and others vs Muslehuddin @ Md Muslem 4 BLC 310. Section 19– Revisional Settlement record of right is the latest record of right and in the event of conflict between old record-of-right and the latest record of right the latest record-of-right shall prevail. Hasemuddin (Md) vs Bangladesh, and others 6 BLC 54. Section 19– There being no delivery of possession by the alleged landlord Syed Asmat Ali and others as has been recorded in the CS Khebat Mohammad Gazi did not acquire any interest in the suit land on the basis of his purchase from Syed Asmat Ali and others so as to confer title on defendants 8 and 9 on the basis of their purchases when the plaintiffs have been able to prove the writ of proclamation and delivery of possession in respect of the suit plot and thus, the recording in the RS and SA Khatian in the name of defendants 8 and 9 has no basis. The plaintiffs predecessor having purchased 0.63 acres of land from Mohammad Gazi has acquired title in respect of said quantum of land. 9 BLC 267. Sections 19 and 144- In the absence of final publication of record-of-right as provided in sections 19 and 144 there cannot be any presumption as to its correctness. Purposes for which record-of-rights are prepared under Chapter IV as well as those prepared under Chapter XIV of the State Acquisition and Tenancy Act. In the absence of any materials on record to the effect that the separation of original tenancy has been effected as provided in section 117(1)(c) a co-sharer's right to preempt cannot be denied. Haladbar Dutta vs Abdul Rob Choudhury 36 DLR 93. Sections 19,144 and 144A- Presumption of correctness in respect of SA Khatian and RS Khatian- Every entry in a record of right prepared or revised under section 144 shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved by evidence to be incorrect—But such presumption is not attached to an entry in a record of right prepared or revised under Chapter IV of the SAT Act. To say that the entry in a record of right has a presumption of correctness is to read something into the statute which is not there in it. Ahmed Meah vs Abdul Majid 1985 BLD 47 Section 19(1)- A Revenue Officer acting under section 19(1) is not a Court. Md Kafiluddin vs Slate 14 DLR 425. Section 19(1)— High Court Division's failure to appreciate the approach and findings of the lower appellate Court. A large part of the judgment is devoted to defendant's weakness in the case including rejection of objection under section 19(1) of State Acquisition and Tenancy Act. Md Naimuddin Sarder vs Md Abdul Kalam Biswas 39 DLR (AD) 237. Section 19(1)- Leave was granted to consider the submission that the findings of fact arrived at by the lower appellate Court on consideration of evidence have been illegally disturbed by the learned judge of the High Court Division on misconstruction of documentary evidence particularly the rent-receipts produced by the par-ties and on wrong view of law taken by the learned Single Judge, in respect of the proceeding under secti 19(1) of the State Acquisition and Tenancy Act. Naimuddin Sarder vs Md Abdul Kalam Biswas 39, DLR (AD) 237 Sections 19(1), 19(2), 50 and 53— Mere payment of rent to the Government on the strength of unfounded entry in the record of right will not creat valid tenancy. Md Yasin vs KK Shome and others 1983 BCR 216-217. Sections 19(1) & 20— An accretion to the Hat does not automatically vest in the Goverment within the meaning and scope of section of the Act, if such accretion took place before Notification under section 3 of the Act. Hatem Ali and others vs Bangladesh 1983 BCR 274. Sections 19(1), 22 & 50— Leave was granted to consider whether, in view of the provisions of section 22 of the State Acquisition and Tenancy Act. 1950 the learned Judges of the High Court Division were wrong in holding that the lands in question were not liable to assessment of rent. In view of the provisions of section 22 of the Act all lands are subject to assessment and payment of rent. Bangladesh vs Zeenat Textile Mills 40 DLR (AD) 189. Section 19(2)— The Revenue Authority, namely, the Additional Collector of Revenue, has no power or jurisdiction to declare a kabala void. A Noor vs Province of East Pakistan 18 DLR 666. Section 19(3) --- The decision of the Revenue Authority is not operative against a person who was not a party to the proceedings. Mafizur Rahman vs Province of East Pakistan 13 DLR 538. Section 19(3) - Record of right when finally prepared shall be conclusive evidence that it has been prepared or revised under Chapter IV which deals with-the subject of preparation of record of right. Mafizur Rahman US Province of East Pakistan 13 DLR 538. Section 19(3) — The recording by a Revenue Authority while preparing the record of rights has nothing do with the question of title. In a suit for title, the entries as to possession can be investigated to see; if they have got foundation. If they are found to be correct, then the question of adverse possession is to be decided. Hamid Ali vs 'Rahola Khatun 14 DLR 603. Section 19(3)— Unlike the provision of section 103(5) Bengal Tenancy Act, the finally published record of-rights under section 19(3) is not conclusive evidence of the correctness of entries in the record of right, but only that it was duly prepared and revised. Khairod Chandu Das vs Bhuti Ram Das 19 DLR 9. Section 19(3)-- Although the SA records, in view of section 19(3) of the State Acquisition and Tenancy Act, do not provide conclusive evidence as regards title but it provides conclusive evidence as regards their preparation and revision. But the entries in the SA records provide a prima facie evidence as regards title. Admittedly, since the SA records stand in the names of the predecessors-in-interest of the plaintiff-opposite parties and also in some of their names it should be taken to be a prima facie evidence of title of the plaintiff in respect of the suit land and as such they were competent to institute the present suit. Shamsul Haque and others us Maze All Mollah 4 BLC178. Sections 46 and 150— It appears from the Ext.2, the SA Khatian thai the name of Hasan-ullah has been recorded as tenant but the name of the ex-proprietor Sunil Chandra Chowdhury has also been inserted in the SA Khatian No. 1160. It has been contended on behalf of the Government that 90 decimals of land of the suit plot No. 5703 was correctly recorded in the name of Hanuram Prashad under khatian No. 1158 which reveals from Exhibit Kha. Since the SA Khatian was in the name of Hanuman Prashad being Khatian No. 1158 and the khatian the Ext Kha was printed and distributed to the tenants under the provision of section 46 of the State Acquisition and Tenancy Act. H is also argued that in order to correct the invalid khatian, namely, khatian No.1160 in the name of Hasanullah as well as other khatians comprising the land of the suit plot, the Relief and Rehabilitation Department by their application dated 15-7-87 initialed a proceeding for correction of the spurious record of rights which was obtained and procured by practicing fraud and accordingly, SA khatian No. 1160 along with 4 khatians were cancelled according to the provision of rule 23(4) of the Tenancy Rules, 1955. Taking into consideration the oral evidence, the Exhibit 2 and the Exhibit Kha, the conclusion would follow that Exhibit Kha strikes the very basis and foundation of the claim of the plaintiff and it can. undoubtedly be said that the plaintiff had acquired no valid title in the suit land and plaintiff has miserably failed to prove the alleged pattan on the basis of which SA khatian was prepared in the name of Hasanullah and hence the trial Court has rightly dismissed the suit. Amanulluh vs Bangladesh and ors 7 BLC 98. Section 143- Section 143 of the State Acquisition and Tenancy Act provides, inter alia, that we record-of-rights prepared or revised shall be maintained upto date in the prescribed manner under Part IV, or under chapter XVII by correcting clerical mistakes and by incorporating the changes on account of the mutation of names as a result of transfer or inheritance. Idris Ali vs Slate 38 DLR = 270. Section 143— The decision of the Board of Land Administration traveled beyond its jurisdiction in deciding matters not within its jurisdiction under section 143 of th.e State Acquisition and Tenancy Act. Syed Ashfaque Hossain vs Bangladesh, represented by Secretary. Ministry of Land Administration and Land reforms 41 DLR 364. . Section 143— The word transfer in Clause (a) of section 143 of the Act is limited to transfer by the recorded tenants and not by other persons and .as such the impugned mutation order in favour of the defendant-petitioners by the revenue authority was without jurisdiction and the appellate Court has, therefore, rightly decreed the suit in favour of the plaintiff.. Shamsul Hoque and others vs Maze Ali Mollah and ors 4 BLC 178. Section 143— Finding of Revenue authority carries much weight so far as possession is Concerned. Abdul Gani Khan vs Shamser Ali 45 DLR 349. Section 143— A Revenue Officer holding an inquiry in a mutation proceeding, in the premises, does not become a court as he does not really adjudicate a right and he does not give a decision which is binding on the parties. Shahera Khatun & ors vs State and another 53 DLR 19. Section 143— A criminal Court can take cognisance of any offence described in sections 463, 471, 475 and 476 of the Penal Code on the basis of complaint by an aggrieved party when such offence is alleged to have been committed by a party to any mutation proceeding in respect of a document produced in evidence in such a ceeding. Shahera Khatun & ors vs State and another 59 DLR 19. Section 143- Since the possession of the plaintiffs has been proved by oral evidence and otherwise the suit is not barred by limitation for bringing the suit beyond 6 (six) years from the publication of the SA record. Serajul Islam and others vs Md Abdur Razzaque Chowdhury and another 58 DLR (AD) 242 Sections 143 and 19-- "Bonafide mistake" As embodied in section 143 cannot be extended to undo an Act of a competent authority after conscious application of mind-Cancellation of mutation alleged to have been fraudulently obtained does not come within the scope of section 143 as a bona fide mistake_Collector has no power to make such correction of record of right published under chap. IV of the Act even if the government is a party. Bangladesh and others us Mariam Khatun and others, Vol. 1-Bangladesh Supreme Court Digest, page 281. Sections 143 and 144– The provisions of the Act and the Rules clearly show that the revision of the rccord-of-rights under section 144 of the Act has presumptive value, but any order of mutation of the record made under section 143 of the Act has no such presumptive value. Shahera Khatun & ors vs State and another 53 DLR 19. Section 143A- Plaintiff-appellant filed the suit for setting aside the ex-parte decree for correction of record under section 143A of the SAT Act where he was not made a party to the suit. Section 143A is meant for a limited purpose for correction of the record of right on the basis of possession of the parties. There is no bar in the institution of the suit on the ground of fraud without availing of the provision for appeal under the SAT Act but the plaintiff is required to establish his locus-standi and the maintainability of the suit. Osmanullah being dead his legal heirs, Kasimullah & others vs Faizullah 4 BLC 438. Section 143A- It appears that only the Deputy Commissioner, Dhaka was made opposite party in the Miscellaneous case and the heirs of Mainuddin Sheikh alias Kochwan, the defendant Nos. 1 to 9, were not made opposite parties and hence the order passed in the said case for recording the name of the plaintiff in the record of right without impleading them cannot be binding upon them and it also cannot be binding upon the transferees as well. Mere mutation and payment of rents do not confer any title on any person. Shahani Bibi being dead her heirs. Mohammad Azim and others vs Nur Islam 4 BLC 195. Section 143A- Section 143A has authorised a person aggrieved by an order or omission of entry in the record-of-rights finally published under Chapter IV of the Act to file a suit for correction of such record-of-rights in the Civil Court. It is obvious, therefore, that an alternative right has now been provided for a detailed probe into the matter and for rectifying an erroneous entry in a record-of-rights. Pijush Kanti Chowdhwy us Abdul Rashid, 23 DLR 60. Section 143 A- Scope of section 143 A- An application under section 143A of the State Acquisition and Tenancy Act is not a suit for declaration of title but is a proceeding for rectification of mistakes in the record-of-right prepared on the basis of possession in the land in question. The scheme of the section shows the possession is the material question. This was a special provision and this section was inserted after section 143 by CP Ordinance VIII of 1965. It was however, omitted aftea few years by Ordinance No. LXIV of 1975. Within the scope of section 143A, there is hardly ground for the Custodian of the Enemy Property appellannt to challenge the title of the plaintiff. The learned Judge found that the Custodian of Enemy Property had no document in his possession to claim the property as enemy property. Before the High Court Division no one appeared on behalf of the present Custodian. The learned Judge of the High Court Division having found the plaintiffs prima facie title and clear possession of the case land, rightly reversed the decision of the lower appellate Court and restored that of the trial Court. Assistant Custodian vs Bholanath Guha 36 DLR (AD) 79. Section 143A- Section 143A is only concerned with the question of possession of the land-Question of title to the land is beyond the scope of this section. Reazuddin vs Jatindra Kishore 37 DLR (AD) 202. Section 143A- Record-of-rights prepared on the basis of possession-High Court Division can not interfere with lower court's decisions on grounds which cannot be considered under section 143A. Reazuddin vs Jatindra Kishore 37 DLR (AD) 202. Section 143 A– The word "transfer" occurring in section 143 A is limited to transfer by the recorded tenant, not by other persons. Section 143 is not attracted when the reeord-of-rights is to be corrected after a finding to be given as to the title of the holders or challengers. Syed Ashfaque Hossain vs Secretary, Ministry of Land Administration and Land Reforms 41 DLR 364. Section 143A- Jurisdiction of Court-jurisdiction to give relief under an omitted provision of law Miscellaneous Case in Munsif Court in 1973 for correction of record of right u/s 143A of the State Acquisition and Tenancy Act, 1950- omission of section 143 of the State Acquisition & Tenancy Act, 1950 by Ordinance No. LXIV of 1975 during pendency of the Miscellaneous Case-there cannot be any doubt that the grant of any relief under the provisions of this section would depend on its existence at the time the relief is being sought and granted—the Ordinance omitting the section from the State Acquisition & Tenancy Act came into force in January, 1976—the, trial court's judgment was delivered on March 31,1977–Court exercises jurisdiction only when empowered by an Act of the Legislature, therefore, when it has been negatived by the legislature by or under a subsequent enactment the court's jurisdiction to pass an order under the repealed Act or provision of an Act is nullified the omission of section 143A equivalent of repeal —exercise of jurisdiction under the omitted section is permissible if the proceeding started at any date earlier than such omission. Sachindra Chandra Sutradhar vs Md Mofizuddin 1985 BCR (AD) 40. Section 143A- Record of rights neither creates nor destroys title. It is merely a record of physical possession at the time when it is prepared. Dhaka City Corporation vs Shamsur Rahman 59 DLR 207. Section 144— The only logical meaning of the expression ‘local area' as understood by this particular statute in the .context of revision of record of rights is primarily area in respect of which a record of right is to be prepared or has been prepared. Capital Co-operative Housing Society vs Bangladesh 45 DLR 289. Sections 144 and 144A- Presumption under section 144A when not possible. No record-of-rights which was finally published under subsection (7) of section 144 of the EP State Acquisition and Tenancy Act having been adduced in evidence the question of presumption under section 144A of The East Bengal State Acquisition and Tenancy Act does not arise. Akrab Ali vs Zahtruddin Kari 30 DLR (SC) 81. Sections 144 and 144A- The presumption as regards the entries in the RS Khatian so attached under section 144A of the Act is rebuttable by leading evidence from the'side of the person questioning correctness of the entry made therein. Government of Bangladesh, represented by the ADC vs AKM Abdul Hye and ors 56 DLR (AD) 53. Sections 144 and 144A- Presumption under section 144 of the Act, when not possible. Akrab Ali & other vs Zahiruddin Kazi 30 DLR (SC) 81. ১৭ (৩) উপধারা অনুযায়ী নােটিফিকেশন বলিতে সরকার কর্তৃক জারিকৃত নােটিফিকেশনকে বুঝায় যাহার দ্বারা অর্জিত সম্পত্তির জন্য ক্ষতিপূরণ দেওয়ার উদ্দেশ্যে খতিয়ান প্রস্তুত করার কথা প্রকাশ করা হয়। [16 DLR S. C.) (1964) 667] রাষ্ট্রীয় অধিগ্রহণ ও প্রজাস্বত্ব আইনে স্বত্বলিপি প্রস্তুকরণ সম্পর্কে ২টি বিধান রহিয়াছে (Provisions)। ১৯ ধারা অনুযায়ী ১৭ ধারার আওতায় প্রদত্ত সরকারি নােটিফিকেশনের আলােকে খাজনা গ্রহীতার স্বার্থ অধিগ্রহণের জন্য স্বত্বলিপি প্রস্তুতকরণের খসড়া প্রস্তুত করা হইয়াছিল অথবা একই বিধানের অধীনে বঙ্গীয় প্রজাস্বত্ব আইনের ১০ অধ্যায়ের আওতায় প্রস্তুতকৃত স্বত্বলিপি সরকার যেভাবে সঙ্গত এবং প্রয়ােজনীয় বলিয়া মনে করেন সেভাবে কোন জেলা, জেলার অংশ অথবা স্থানীয় এলাকা সংক্রান্ত ব্যাপারে পুনঃ পরীক্ষা করা হইয়া থাকিবে। উপরােক্ত স্বত্বলিপিগুলির খসড়ায় যুক্ত করা দরকার এমন সব বিষয়ের বর্ণনা সরকার কর্তৃক এই উদ্দেশ্যে প্রকাশিত বিধিতে বর্ণিত হইয়াছে। Haladhar Dutta vs Abdul Rob-36 DLR, (1984 193] (২) উপধারা অনুযায়ী রাজস্ব কর্মকর্তার আদেশের বিরুদ্ধে সেটেলমেন্ট কর্মকর্তার পদের নিচে নয় এমন রাজস্ব কর্তৃপক্ষের নিকট আপিল করা যাইবে। ৫৩ ধারা অনুযায়ী তাহার আদেশের বিরুদ্ধে বিশেষ জজের নিকট আপীল করা যাইবে এবং সেখান হইতে দেওয়ানী কার্যবিধির ১১৫ ধারা অনুযায়ী সুপ্রীম কোর্টের হাই কোর্ট বিভাগে রিভিশন করা যাইবে । [10 DLR (1958) 527] রাষ্ট্রীয় অধিগ্রহণ ও প্রজাস্বত্ব আইনের ১৯ ধারার বিধান অনুসরণে যে স্বত্বলিপি প্রস্তুত করা হয়, উহাকে এস, এ রেকর্ড বা এস, এ পর্চা বলা হয়। এই পর্চার সাক্ষ্যগত মূল্য বা গুরুত্ব কতটুকু তাহা প্রতিনিয়ত স্বত্ত্বের মামলায় বিবেচনাযোগ্য হইয়া থাকে। কি অবস্থার প্রেক্ষিতে খতিয়ান প্রস্তুত করা হয় তাহার উপর খতিয়ানের সাক্ষ্যগত মূল্য অনেক নির্ভর করে। স্বত্বলিপি একটি খন্ডনীয় সাক্ষ্য হিসাবে বিবেচিত হইয়া থাকে। স্বত্বলিপিতে কোন নাম অন্তর্ভুক্ত হইলেই অধিকার সৃষ্টি করে না বা অধিকার বিলুপ্ত করে না। [(1935) C. W. N. 22] যদি দখলের ভিত্তিতে খতিয়ান প্রস্তুত করা হয় তাহা হইলে স্বত্বলিপি সঠিকভাবে প্রস্তুত করা হইয়াছে বলিয়া অনুমান করা হইবে। (935) C. w. N. 22] স্বত্বলিপিকে মালিকানার প্রশ্নে সাক্ষ্য হিসাবে ব্যবহার করা যায় না তবে মালিকানা যদি দখলের ভিত্তিতে কার্যকরী হয় সে ক্ষেত্রে ইহাকে মালিকানার প্রমাণ হিসাবে ব্যবহার করা যাইতে পারে। (1935) 62 C. L. J. 10 ] কিন্তু স্বত্বলিপিতে কোন নাম অন্তর্ভুক্ত করণ যদি প্রাথমিকভাবে ভিত্তিহীন হইয়া থাকে, তাহা হইলে অন্য কোন কিছু দ্বারা ইহাকে সঠিক বলিয়া প্রমাণিত করা যাইবে না। [(1939) 71 CLJ 100] স্বত্বলিপি হইতে মালিকানা সম্পর্কিত উদ্ভূত অনুমান খন্ডন করা যায় এবং এইক্ষেত্রে স্বত্বলিপির অন্তর্ভুক্ত বিষয়কে সাক্ষ্য দ্বারা ভুলও প্রমাণিত করা যায়। এই ধরনের সাক্ষ্য সেটেলমেন্টের কার্যবিবরণীর বহির্ভূত হইতে পারে বা সেটেলমেন্টের কার্যবিবরণীর অন্তর্ভূক্ত হইতে পারে। ইহা খতিয়ান প্রস্তুতের তারিখের পূর্বে বা পরেও হইতে পারে। [(1923) 19 C. W. N. 517] ১৯ ধারা এবং ১৪৪ ধারা অনুযায়ী চূড়ান্তভাবে প্রকাশিত স্বত্বলিপির অবর্তমানে ইহার বিশুদ্ধতা সম্পর্কে কোন অনুমান করা যাইবে না। [Haladhar Dutta VS. Abdul Rob Chowdhury 36 DLR (1984) 1931] ১৯০৮ সালে বাটোয়ারা খতিয়ান প্রস্তুত করা হয় এবং ১৯১৫ হইতে ১৯১৮ সালের মধ্যে সি, এস, খতিয়ান প্রস্তুত করা হয়, সে কারণে সি. এস. খতিয়ান শেষ দিকে প্রস্তুতকৃত বিধায় সময়ের বিবেচনায় উহাই অধিক গ্রহণযােগ্য। সি. এস. খতিয়ান প্রস্তুতের পর বাটোয়ারা খতিয়ানের গুরুত্ব লােপ পায়। [A. Hamid vs. A. Hossain, 35 DLR, (1983) 296] ১৪৪ ধারার ৭ উপধারা অনুযায়ী চূড়ান্তভাবে প্রকাশিত হয় নাই এইরূপ স্বত্বলিপির কোন সাক্ষ্যগত মূল্য নাই । কিংবা ১৪৪-ক ধারা অনুযায়ী কোন বিশুদ্ধতার অনুমান করা যাইবেনা। [Akrab Ali vs. Zahiruddin Kari, 30 DLR (AD) (1978) Pg. 81] এই আইনানুযায়ী স্বত্বলিপি পুনঃপরীক্ষা দ্বারা ইহা বুঝা যায় যে, “স্থানীয় এলাকা” এর যুক্তিসঙ্গত অর্থ হইলাে এমন স্থান যে স্থানের ব্যাপারে স্বত্বলিপি প্রস্তুত হইতেছে বা হইয়াছে। [Capital Co-operative Housing Society Vs. Bangladesh, 45 DLR (1993) 289] শেষােক্ত স্বত্বলিপি পূর্বোক্ত স্বত্বলিপির চাইতে নির্ভরযােগ্য, কালের প্রবাহে খতিয়ানের বিশুদ্ধতার অনুমান বিলুপ্ত হয়। এবং পূর্ববর্তী খতিয়ানের লিখনের তুলনায় পরবর্তী খতিয়ানের লিখন যেকোন আদালতের নিকট অধিক গ্রহণীয় হইবে। [A Hamid Vs. A Hossain, 35 DLR, 295] নামজারির কার্যক্রম বিচার বিভাগীয় কার্যক্রম নহে, যে বিচার বিভাগীয় কার্যক্রমে স্থাবর সম্পত্তির স্বত্ব নির্ধারণ করা হয়। [ldrish Ali Vs. State, 39 DLR (1986) 270] ১৪৩ ধারায় বলা হইয়াছে যে, কালেক্টর কর্তৃক স্বত্বলিপি নির্ধারিত পদ্ধতিতে ৪র্থ ভাগ অথবা ১৭ ভাগ অনুযায়ী হালনাগাদ প্রস্তুতকৃত বা পরিমার্জিত হইবে এবং করণিক ভুল সংশােধন করিয়া এবং নিম্নের কারণে উত্তরাধিকার বা হস্তান্তরের ফলে নাম জারির জন্য যে পরিবর্তন হইবে সেই পরিবর্তন অন্তর্ভূক্ত করিয়া স্বত্বলিপি সংরক্ষণ করিবেন কালেক্টর। [Idrish Ali Vs. State, 38 DLR (1986) 270] দখল সংক্রান্ত ব্যাপারে রাজস্ব কর্মকর্তার সিদ্ধান্তের অনেক গুরুত্ব রহিয়াছে। [Abdul Gani Vs. Shamser Ali, 45 DLR (1993) 344] যখন কোন করণিক ভুল সংশােধন করা প্রয়ােজন হয়, অথবা অন্যান্য কারণের মধ্যে হস্তান্তর বা উত্তরাধিকারের কারণে স্বত্বলিপি সংশােধনের প্রয়ােজনীয়তা দেখা দেয় তখন ১৪৩ ধারার বিধান প্রযােজ্য হয়। যখন জমির ধারকের বা চ্যালেঞ্জকারীর স্বত্ব সম্পর্কে মন্তব্য পূর্বক রেকর্ড সংশােধন করা প্রয়ােজন তখন এই ধারার বিধান প্রযােজ্য হইবে না। স্বত্বলিপির ধারনের নামে রেকর্ড থাকার মত স্বত্ব আছে কিনা তাহা নির্ধারণের জন্য স্বত্বের দলিলপত্র পরীক্ষা করিবার ক্ষমতা এই ধারায় দেওয়া হয় নাই। রাজস্ব কর্তৃপক্ষ নাম জারি কার্যক্রমে কোন দলিলকে অকার্যকরী বা জাল বলিয়া মন্তব্য করিতে পারেন না। এইরূপ প্রশ্ন করিবার এখতিয়ার রাজস্ব বিভাগের নাই। (Ashfaque Hossain Vs. Bangladesh, 41 DLR (1989) 364] নাম জারিকরণের বৈধতা বিষয় অগ্রক্রয়ের মামলায় চ্যালেঞ্জ করা যাইবে। অগ্রক্রয়ের মামলা রুজু করিবার পর নাম পত্তন বা নাম জারি করা হইলে উহা সম্পত্তি হস্তান্তর আইনের ৫২ ধারায় বাধাগ্রস্ত হইবে। [Md. Rauf vs. Mahmuda Khatun, 33 DLR (AD) 323] খতিয়ানেকোন নাম অন্তর্ভূক্ত হলেইতা কোন অধিকার সৃষ্টিকরে না বা অধিকারবিলোপ করে না। কিন্তুযেহেতু প্রচারণা ও জনগণের অবগতিরমাধ্যমে খতিয়ান পর্চা প্রস্তুত করা হয়ে থাকেসেইহেতু দখলের ভিত্তিতে প্রস্তুতকৃতখতিয়ান নির্ভরযোগ্য বলে ধরা যায়। কেশববনাম মদন [40 CWN (1935) 22] ডানকানবনাম রাধা [62 CLJ. (1935) 10] মামলায় সিদ্ধান্ত দেওয়া হয় যে, খতিয়ানকে মালিকানার পক্ষে সাক্ষ্য হিসেবেব্যবহার করা যায় নাতবে মালিকানা যদি দখলের ভিত্তিতেকার্যকরী হয় সেক্ষেত্রে এটাকেমালিকানার প্রমাণ হিসাবে ব্যবহার করা যেতে পারে।তাই খতিয়ান থেকে মালিকানা সম্পর্কিতউদ্ভুত ধারণা খন্ডন করা যায়।এটা খতিয়ান প্রস্তুতের সময় বা পরেওহতে পারে। রামনাথ বনাম অফিসিয়ালট্রাষ্টি, [(1923) 19 CWN 517] বাটোয়ারাখতিয়ান ১৯০৮ সালে প্রস্তুতকরা হয়েছে। কিন্তু সি. এস খতিয়ান ১৯১৫ -১৯১৮ সালের মধ্যেপ্রস্তুত করা হয়েছে। সেইহেতু সময়ের দিক বিবেচনা করলেসি, এস খতিয়ান এরগ্রহণ যােগ্যতা পূর্বের খতিয়ান এর চাইতে অধিকতর গ্রহণযোগ্য। [35 DLR 295] সময়েরদিক বিবেচনা করে এটা বলাযায় যে, সি, এস, খতিয়ান এর গ্রহণযোগ্যতা সি, এস এর পূর্বের খতিয়ানেরচাইতে অধিকতর। [38 CWN 268] সি, এস খতিয়ানে লিপিবদ্ধ বিষয় সমূহ ভুলএটা প্রমানের দায়িত্ব তাকেই বহন করতে হবে যিনিএটা ভুল বলে অভিযোগকরেন। [22 DLR 36] সি, এস খতিয়ানের শুদ্ধতা বিষয়ে একটা আইনানুগঅনুমান আছে কিন্তু এটা খন্ডনীয়।[30 DLR 250] নাদাবীপত্র এবং সি, এসখতিয়ান মালিকানা বা স্বত্বের কোনদলিল নয় এগুলো মালিকানা বা স্বত্বের স্বপক্ষেসমর্থিত সাক্ষ্য হতে পারে। [1990 BCR (AD) 247] সি, এস খতিয়ান এর অনুমান সম্পর্কিতভার হারিয়ে যায় না যদিওএর ভিত্তি সম্পর্কে প্রমাণ অনুপস্থিত থাকে।[35 DLR 795, 14 DLR 725] প্রদর্শনী-২ এর অনুমতিমূল্য অব্যাহত থাকবে যদি নাএটা সন্তোষজনক সাক্ষ্য দ্বারা খন্ডন নাকরা যায় যে সি, এস খতিয়ান ভিত্তিহীন। এই অনুমান কোন অকাট্য প্রমাণ দ্বারা খন্ডন করাহয় নাই। অভিহিত পরিত্যাক্ততাসম্পর্কে বিবাদী যেহেতু মামলায় কোন সাক্ষ্য নথিতেসামিল করে নাই, সেইহেতুএটা ইঙ্গিত করা যায় নাযে সি, এস খতিয়ানটি-এর সাক্ষ্যগত মূল্যহারিয়ে ফেলেছে। [1983 BCR 170] ১৯২৮সালের Proviso অন্তর্ভুক্তির পূর্বেই বর্গাদারকে একজন প্রজা হিসাবে সি, এস খতিয়ানে লিপিবদ্ধ করা হয়েছে, সেহেতুউক্ত অন্তর্ভূক্তির পরও প্রজার অধিকার (Tenancy right) ব্যক্ত (plead) করতে পারে। [14 DLR 801 (DB)] রেকর্ডঅব রাইটস্ এর Entry-বিশুদ্ধতাসম্পর্কে অনুমান বিজ্ঞ সাবজজ সঠিক ভাবেই অনুধাবন করেছেনযে, আর, এস রেকর্ডএর বিশুদ্ধতা খন্ডন করার জন্য কোনঅখন্ডনীয় প্রত্যক্ষ সাক্ষ্য প্রমাণ নাই। [1988 BLD 497] আর, এস খতিয়ান মালিকানা বা স্বত্বের কোনদলিল নয়। এগুলো খুব বেশী হলে দখল এর দলিল, ভূমিতে স্বত্বের কোন দলিল নয়।[25 DLR 35] আর, এস রেকর্ড বিশুদ্ধ ভাবেদখল সম্পর্কিত বিষয়টি সমর্থন করে না। বাদীতার মোকদ্দমা প্রমাণ করতে ব্যর্থহয়েছে। [1990 BCR (AD) 443] যেসমস্ত দাখিলকৃত দলিল প্রদর্শনী চিহ্নিতহয়েছে তা ত্রিশ বৎসরের পুরাতন, যা থেকে অনুমান করাযায় যে, দলিলাতে উল্লেখিতঅফিস গত (Official Act) কার্যকলাপ নিয়মিত ভাবে পালিত হয়েছেএবং বিষয়টি এক্ষেত্রে R, S. Record এবং পরবর্তী রেকর্ডঅব রাইট এর বিশুদ্ধতারঅনুমান খন্ডন করার জন্য যথেষ্ট। [43 DLR (AD) 12], [AIR 1942 Mad 698], [AIR 1928 Cal, 485] যদিওবাদী একজন সহ অংশীদার(Co- Sharer) হিসাবে প্রাসঙ্গিক| আর, এস খতিয়ানেতার নাম রেকর্ডভুক্ত করতেপারে নাই সেইহেতু এইরেকর্ড এর সূত্রে বাদীর দাবীমতে বলা যায় নাযে নালিশী সম্পত্তি থেকেবাদী সম্পূর্ণতঃ বিতাড়িত (Ouster) শুধুমাত্র R.S খতিয়ান এর নিছক Entry এরভিত্তিতে| এই বিতাড়নের অনুমানটিকরা যায় না যেনালিশী সম্পত্তিতে বিবাদীর সহ অংশীদারের বিরুদ্ধ দখল (Adverse Passession) রয়েছে। [PLD 1959 Dhaka 655] এমনকি ১৯২৮ ইং সালেBengal Tenancy Act এর ১০১(১) ধারাসংশোধনের পূর্বে অ-কৃষিভূমি সংক্রান্ত যে Record of nights প্রস্তুত করা হয়েছিল এইআইনের ২০তম অধ্যায় অনুসারে, উক্ত Record এর সেই। সমস্ত Entries একটা বিধিবদ্ধ (Statutory) বিশুদ্ধতা বহনকরে উক্ত আইনের ১০৩ (খ) ধারাঅনুসারে। [4 DLR 493] বিবাদীরনামে প্রস্তুত কৃত R.S খতিয়ানটির বিশুদ্ধতা সম্পর্কে অনুমান এর বিষয়টি বাদীস্থানচুত্য করতে চাইছে বিভিন্নবিষয় সৃষ্টি করা সহনালিশী জমিতে বাদীর স্বত্ব দখল প্রমাণএর চেষ্টা করে, বাদীএক্ষেত্রে কোন ডিক্রী পেতেপারে না। [42 DLR 435] রেকর্ডঅব রাইটস্ - পরবর্তী রেকর্ড পূর্বের রেকর্ডেরউপর বহাল হবে এবং প্রাধান্য পাবে।[35 DLR-295] [100 IC 701] পুর্ববতীরেকর্ড অব রাইট এরঅনুমেয় (Presumptive) মূল্য হারিয়ে ফেলে। [17 DLR (SC) 392] [9 DLR 467] রেকর্ডঅব রাইট (খতিয়ান) হলােবর্তমান দখলের প্রমাণ। [32 DLR 252] যতক্ষণপর্যন্ত রেকর্ড অব রাইটচূড়ান্তভাবে প্রকাশিত না হয় ততক্ষণ পর্যন্ত এটার বিশুদ্ধতা বিষয়ে অনুমান করাযায় না। [18 CWN 896], [27 IC 229], [34 IC 857] যদি বিপরীত কিছু প্রমাণিতনা হয় পরবর্তী রেকর্ডঅব রাইট পূবের রেকর্ড অবরাইট এর উপর স্থানপাবে। [AIR 1981 Cal. 74], [AIR 1959 Cal,78] [AIR 1978 Cal 556], [AIR 1949 Cal 609] [AIR 1963 (SC) 361] যদি পরবর্তী রেকর্ড অব রাইটচূড়ান্ত ভাবে প্রকাশিত হয়েযায় তবে পুর্বের রেকর্ডঅব রাইটস্ এর বিশুদ্ধতাবিষয়ে কোন অনুমান করাযাবে না। [61 CLJ 18], [AIR 1949 Cal, 609] এটি সিদ্ধান্ত গ্রহণ করা হলােযে পি, এস খতিয়ানসম্পর্কিত অনুমানের প্রশ্ন১৪৪ ধারা অনুযায়ী করাযায় না যতক্ষণ এটাপ্রমাণিত না হয় যেউক্ত খতিয়ান রাষ্ট্রীয়অধিগ্রহণ ও প্রজাস্বত্ব আইনের১৪৪ (৭) ধারা অনুযায়ীচূড়ান্ত ভাবে প্রকাশিতহয়েছিল। [30 DLR (AD) 81] প্রতিটি রেকর্ড অব রাইটস্এর বিষয়ে অবশ্যই অনুমানকরতে হবে যে এটাবিশুদ্ধ যতক্ষণ পর্যন্ত এটাভুল প্রমাণিত না হয়। [38 DLR 327], [Sec 14A (A) of S.A. & T Act 1950] B.T. Act এর অধীনে যে রকমঅনুমান করা যেত S.A. & T. Act এরঅধীনে সে রকম নাই।[21 DLR 854 ] স্বামী এবং স্ত্রী যখনদেশের একই বাড়ীতে প্রাসঙ্গিকসময়ে একত্রে বসবাস করছেন, স্ত্রী দানকৃত সম্পত্তিতে গঠনমূলকদখলে (Constructive Possession), আছেন।এস,এ খতিয়ানে নিছকEntry দান গ্রহীতার(Donee) স্বত্ব এবং দখলকে নেতিবাচককরতে পারেনা। [1990. BCR306] খতিয়ান বর্তমান দখলের একটি সাক্ষ্য, এটি স্বত্বের কোন সাক্ষ্য নয়। [32 DLR 126] নাম খারিজ (Mutation)-এরদ্বারা স্বত্বের উদ্ভব হয় না।[19 DLR 9] খতিয়ান Title(স্বত্ব) এর কোন দলিলনয়, এটি নিজস্ব ভাবেস্বত্বের সাক্ষ্যনয়। [28 DLR (AD) 61] রেকর্ড অব রাইটস্ Title (স্বত্ব) এর কোন দলিল নয়।[36 CWN 783] খতিয়ান স্বত্বের সমর্থনে একটি সাক্ষ্য হতেপারে। [62 CLJ 10] খসড়া খতিয়ান স্বত্বের একটি নিদর্শন পত্র(Instrument)। [AIR (1936) PC 108], [40 CWN 449] খতিয়ান স্বত্বের সৃষ্টি করে নাআবার স্বত্ব কে ধ্বংসওকরে না। [60 CLJ 477], [60 CWN 793], [38 CLJ 64], [70 CWN 1066, [AIR 1956 (SC) 326] একটি খতিয়ান দখল সম্পর্কিত বিষয়েউত্তম প্রমাণ। [AIR 1965 Cal. 669], [AIR 1963 Bom, 100] [AIR 1964 Pat, 187], [AIR 1937 PC 69] একটি সেটেলমেন্ট রেকর্ড অব রাইটস্স্বত্বের কোন দলিল নয়, খুব বেশী হলেএটা স্বত্ব সম্পর্কিত বিষয়েসাক্ষ্য এর প্রাসঙ্গিক দলিলহতে পারে এবং স্বত্ত্ব সম্পর্কেএকটা অনুমান এর উদ্ভবঘটাতে পারে। [AlR 1956 Cal 669], [60 CWN 793], [AIR 1955 Punj 37], [70 CWN 1066] যেহেতু Entry কোন স্বত্বের সৃষ্টিকরতে পারে না সেইহেতুএটি স্বয়ংএকটিনালিশের কারণ এর উদ্ভবঘটাতে পারে না। [AIR 1932 Cal. 842=32 CWN 783] Entry কোন স্বত্বের সৃষ্টি করেনা বাকোন অধিকার এর বিলুপ্তিঘটায় নাযেহেতু এটি দখল এরউপর ভিত্তি করে প্রস্তুতকরা হয়েছে। [40 CWN 32=61 CLJ 519, 60 CLJ 477] এটি আইনে একটি উত্তমপ্রতিষ্ঠিত নীতি যে একটিরেজিষ্ট্রিকৃত কবলা হলােস্বত্বের পক্ষে একটি প্রমাণযা খতিয়ান এর উপর প্রাধান্যপায়। [32 DLR 252 (DB)] খতিয়ানের বিষয়ে অনুমান কবলারবর্ণনার উপরে স্থান (Prevail) লাভ করবেনা। [49 CWN 59; 48 CWN 269] রেকর্ড অব রাইট-পরবর্তীRecord of Right পূর্ববর্তীRecord of Right-এরউপর স্থান পাবে। [35 DLR 295] প্রতিটি Record of Right এর Entry সমূহ যা চুড়ান্তভাবে প্রকাশিত হয়েছেতা উক্ত Record of Right এর প্রতিটি বিষয়এর অবশ্যই সাক্ষ্য হবে, এটাভুল প্রমাণিত না হওয়া পর্যন্ততা সঠিক বলে অবশ্যইঅনুমান করতে হবে। [38 DLR 327], [30 DLR (SC) 81] যেখানে বাদী তার স্বত্বেরভিত্তি হিসাবে Record of Rights এর Entry-এরউপর নির্ভর করে, সেখানেতার স্বত্বের ভিত্তি Record of Rights -এরEntry তা দেখানাের প্রয়ােজন নাই। [33 DLR 126] যেখানে আপীল আদালত সিদ্ধান্তগ্রহণ করেছেন যে Record of Rights এরEntry এর বিশুদ্ধতা খন্ডনীয় সেটাকে দ্বিতীয় আপীলেবিরক্ত করা যাবেনা। [33 DLR 126], [51 CLJ 518] এটা সিদ্ধান্ত গ্রহণ করা হয়যে, যদি Record of Rights এর Entry এরকোন ভিত্তি না থাকেসেক্ষেত্রে Record of Rights এর Entry ভুল বলে আদালতসিদ্ধান্ত গ্রহণ করতে পারেন।[1981 BCR 393] [55 CWN 63] পরবর্তী Record of Rights যদি চূড়ান্তভাবে প্রকাশিত হয়ে যায় তবে পুর্ববতীRecord of Rights এর বিশুদ্ধতা বিষয়ে কোন অনুমানকরা যাবে না।। [AIR 1963 SC 361] [AIR 1949 Cal. 609] [AIR 1959 Cal. 78], [61 CLJ 18] খসড়া রেকর্ড অব রাইটস্এর বিশুদ্ধতা বিষয়ে কোন অনুমানকরা যায়। [AIR 1974 SC 323] রেকর্ড অব রাইটস্ এঅনুমান এর বিষয়টি তখনইসংযুক্ত হয় যখন এটা চূড়ান্ত(Finally) ভাবে প্রকাশিত হয়। [AIR 1928 Cal 298], [109 IC 241] যতক্ষণ পর্যন্ত খতিয়ান চূড়ান্তভাবে প্রকাশিত না হয়, এরসঠিকতা ততক্ষণ পর্যন্তঅনুমান করা যায় না। [l8 CWN 896], [27 IC 229], [34 IC 229] রেকর্ড অব রাইট থেকেযে অনুমান এর উৎপত্তিহয় তা হলাে রেকর্ডঅব রাইটস্-এ যে সমস্তবিষয়াবলী লিপিবদ্ধ হয়েছে তা চূড়ান্তপ্রকাশনার তারিখ থেকে সঠিক।[30 DLR (AD) 81], [33 DLR 126] খতিয়ানেলিপিবদ্ধ (Entry) বিষয় এর বিশুদ্ধতাসম্পর্কে নালিশের কারণ।সেদিনথেকেই উদ্ভব হয় যেদিন খতিয়ান চূড়ান্তভাবে প্রকাশিত হয়। [12 CWN 8], [AIR 62 Cal 51] [40 CWN 22], [61 CLJ 519] খতিয়ানে লিপিবদ্ধ প্রতিটি বিষয় যা চুড়ান্তভাবে প্রকাশিত হয়ে যায় তা ঐসমস্তবিষয় এর প্রমাণ, এটাঅবশ্যই সঠিক বলে অনুমানকরতে হবে যতক্ষণ তাঅশুদ্ধ প্রমাণ না করাহয়। [38 DLR 327], [30 DLR (AD) ৪] এটি সিদ্ধান্ত হয়েছে যে খতিয়ানেরEntry গুলির যদি কোন ভিত্তিনা থাকেআদালত এই সিদ্ধান্তে উপনীতহবেন যে খতিয়ানের Entry গুলিভুল। [1981 BCR 393],[55 CWN 63] [খতিয়ান এর Entry এর ফলাফল এইযে, আদালত সেই অনুযায়ী অগ্রসরহতে বাধ্য যতক্ষণ নাএটি অশুদ্ধ বলে দেখানােনা হয়। [22 CWN 449], [45 IC 65] খতিয়ান যে তারিখে প্রস্তুতহয় সে তারিখ থেকেএর সঠিকতা বিষয়ে অনুমানসময় অতিক্রম এর সাথে সাথেএর মূল্য ক্ষয়ে যাওয়াবিষয়টি সাক্ষ্য দ্বারা প্রমাণকরা যেতে পারে। [PLD 1965 SC 434] যে তারিখে খতিয়ানটি চুড়ান্তভাবেপ্রকাশিত হবে সে তারিখথেকে খতিয়ানটিতেলিপিবদ্ধ বিষয় সমূহ সঠিকবলে অনুমান করতে হবে।[9 DLR 467] রাজস্ব অফিসার স্বত্ব সম্পর্কিতপ্রশ্নের বিষয়ে কোন সিদ্ধান্তদিতে পারেন না। [18 DLR 666, 20 DLR 627] রাজস্ব অফিসার একটি দলিলকে বাতিল বলে ঘােষণাকরতে পারেন না। [18 DLR 666] মিউটেশন কার্যক্রম এর আদেশ স্বত্বেরপ্রমাণ হিসাবে ব্যবহত হতেপারে। [PLD 1961 Kar 173 (WP)] মিউটেশন রেজিস্টারে লিপিবদ্ধ বিষয়াবলি পক্ষদের মধ্যে পারস্পরিক সম্পর্কপ্রমাণ এর ক্ষেত্রে প্রাসঙ্গিক।[PLD 1965 Lah 482] মিউটেশন কার্যক্রম কোন বিচারিক কার্যক্রমনয়, খুব বেশী হলেএটা সাক্ষ্যএর একটি অংশ (Item) হিসাবেব্যবহার করা যেতে পারে। [20 DLR 309 (WP)] মিউটেশন কার্যক্রম কোন বিচারিক বিষয়নয় যেখানে স্থাবর সম্পত্তির স্বত্বেরবিষয়টি নির্ধারণ করা যায়। [38 DLR 270 (273) (DB), AIR 1926 PC 100] মিউটেশন কার্যক্রম রাষ্টীয় অধিগ্রহণ ও প্রজাস্বত্ব আইনএবং এর অধীনে প্রণীতরুল অনুযায়ী পরিচালিত হয়। [38 DLR 270 (DB)] একজন রাজস্ব অফিসার যিনিমিউটেশন কেস বিষয়ক কার্যক্রমপরিচালনা করেনতিনি ফৌজদারী কার্যবিধির ১৯৫ (১) (গ) ধারা অনুযায়ী একটি আদালত নন। [38 DLR 270 (DB)), 9 DLR (WP) 40], [PLD 1973 SC 619] মিউটেশন এর বিষয়টি রাজস্বসংক্রান্ত উদ্দেশ্যে, এটি নিজে কোনস্বত্ব অর্পন(Confer) করে না- মিউটেশন কার্যক্রমেরাজস্ব অফিসার কর্তৃক রেকর্ডকৃত কোনঘটনার বিবরণ মূল্যবান স্বাক্ষ্য, কিন্তু চূড়ান্ত সাক্ষ্য নহে। [PLD 192 Pesh, 205] দেওয়ানী আদালত কর্তৃক প্রদত্তডিক্রী অনুযায়ী, রেভিনিউ রেকর্ড/মিউটেশন রেজিষ্টারে, Entries সমূহ সংরক্ষণ করাপ্রয়ােজন। [PLD 1988 Rev. 24, PLD 1950 Rev, 684] দেওয়ানী আদালত কর্তৃক প্রদত্তডিক্রী অনুসারে মিউটেশন করা রাজস্ব কর্তৃপক্ষএর একটা বাধ্যবাধকতা, তাঁরাএই অজুহাতে মিউটেশন এর বিষয়টি প্রত্যাখ্যানকরতে পারেন না যেডিক্রীটি তামাদীর সময়ের মধ্যে জারীকরে কার্যকরীকরা হয় নাই। [1972 SCMR 322] রাজস্ব কর্তৃপক্ষ কর্তৃক খতিয়ান প্রস্তুতকরণ-রাজস্ব কর্তৃপক্ষ স্বত্বেরএবং Entries এরফলাফল বিষয়ক প্রশ্নের মিমাংসাকরতে পারেন না। [14 DLR 603 (DB)] রেভিনিউ রেকর্ডে অন্তর্ভূক্ত লিপিবদ্ধ বিষয় (Entries) যা দীর্ঘ সময় যাবৎরক্ষিত হয়েছে, তা প্রতারণার হেতুবাদেরাজস্ব কর্তৃপক্ষ কর্তৃক পরিবর্তন করা যাবেনা। বিক্ষুব্ধ পক্ষ যােগ্যতা সম্পন্নদেওয়ানি আদালতে প্রতিকার এরজন্য প্রার্থী হতেপারেন। [PLD 1986 Rev. 150, AIR 1954 SC 526] [PLD 1958 SC. 201, AIR 1955 Cal. 92] [PLD 1964 SC. 74, AIR 1929 Mad. 209] দখল এর বিষয়টি ভুলকরা হয়েছে C. S খতিয়ানে বিষয়টি প্রমাণের দায়িত্বতার যিনি এটা অভিযােগকরেছেন। [22 DLR 36] দলিল প্রতারণা করে হাসিল করাহয়েছে প্রতারণার বিষয়টি প্রমাণ এর দায়িত্বতার যিনি এটা অভিযােগকরেছেন। [34 DLR 225, 12 DLR 566], [PLD 1961 Dhaka 71, 102 IC 283] খতিয়ান তার মূল্য হারিয়েফেলে যদি সাক্ষ্য দ্বারাপ্রমাণিত হয় যে এর কোনভিত্তি নেই। [1941 BCR 393, 31 CWN 63] [55 CWN 63] জমাবন্দিতে লিপিবদ্ধ বিষয়- বিশুদ্ধতার অনুমানযে পক্ষ Challenge করেছেনEntries এর বিশুদ্ধতার বিষয়ে অভিযােগটি তাকেঅবশ্যই প্রমাণ করতেহবে। [PLD 1960 Lah. 181 (WP), ILR 6 Lah. 196] [ILR 7 Lah, 346] যে পক্ষ খতিয়ানের উপরনির্ভর করছে তাকে এরবিশুদ্ধতা প্রমাণ করতে হবেনা। [AIR 1965 Cal. 328, 69 CWN 210] স্বত্ব (Title) সম্পর্কিত প্রশ্নের বিষয়টি কেবল মাত্র দেওয়ানীআদালত নির্ধারণকরতে পারেন। [15 DLR 483] রেকর্ড অব রাইটস্ প্রস্তুতকরা হয় দখলের ভিত্তিতে।হাইকোর্ট বিভাগ নিম্নআদালত এর সিদ্ধান্তে হস্তক্ষেপকরতে পারেন না যেটারাষ্ট্রীয় অধিগ্রহণ ও প্রজাস্বত্বআইনের ১৪৩ (ক) ধারায়বিবেচনা করা যায় না। [37 DLR (AD) 202] এটি উত্তম ভাবে সিদ্ধান্তিত১৪৩ (ক) ধারার অধীনেদায়েরকৃত মােকদ্দমারদখল স্বত্বে যে কোন ত্রুটিইথাকুক না কেন। যদিএটি দেখা যায়, আপীলকারীনালিশি সম্পত্তি যখন খতিয়ান প্রস্তুতহয়েছিল তখন থেকেই দখলকরে আসছিলতবে তারা তাদের নামরেকর্ড ভুক্ত করায় অধিকারী। [37 DLR (AD) 202, 41 DLR 364] [36 DLR (AD) 79] খতিয়ান এর বিশুদ্ধতার বিষয়েঅনুমান দেওয়ানী আদালত এর সিদ্ধান্ত দ্বারাপ্রত্যাহৃত হয়ে থাকে। পরবর্তীকোন Entry যা দেওয়ানী আদালতেরসিদ্ধান্ত কেঅবজ্ঞা করেছে তা কোনঅনুমেয় মূল্য বহন করেনা। [70 CWN 1060, 60 CWN 793] রাজস্ব কর্তৃপক্ষ কর্তৃক প্রস্তুতকৃত খতিয়ানএর একটি Entry করার বিষয়েদেওয়ানী মামলা করা যায়। [AIR 1937 Cal 74, ILR 48 Cal. 359], [25 CWN 13] রেকর্ড অব রাইটস্ অশুদ্ধএবং এটি বিশুদ্ধ করণেরবিষয়ে একটি ঘােষণামূলকমােকদ্দমা সুনির্দিষ্ট প্রতিকার আইন (Specifie Relief Act ) এর ৪২ ধারায়গ্রহণযােগ্য। [AIR 1937 Cal. 745] খতিয়ান চুড়ান্ত ভাবে প্রকাশিত হবারপূর্বে খতিয়ান সম্পর্কে অনুমান রক্ষণীয়নয়। [AIR 1967 Cal 10] State Acquisition & Tenancy Act (XXVIII of 1951) Section 143A Suit Valuation Act, 1887 S. 3—Appeal in land suit or suit concerning interest in land—Forum is determined by valuation determined under the rules and not by market value. The forum of appeals in land suits or interest in the land for the purposes of section 18 of the Ordinance the determining factor would be the value of original suit determined under rules framed under section 3 of the Suits Valuation Act for the purposes of jurisdiction, and not the market value of the subject- matter of the suit. Maqarrab Khan Vs. MoM. An- war Khan PLD 1964 (WP) Peshawar 228=PLR 1965 (2) WP 168=PLR 1965 (1) WP 527 (DB) (Daud, I). S. 8—Suit falling under s. 7(iv)(l) Court-Fees Act—Valuation for Court-Fee and jurisdiction is the same. In a suit for rendition of accounts the plaintiff must state the amount at which he values the relief sought. In such a suit the crucial value is value of the relief and the plaintiff need not state any value for purposes of jurisdiction because it will be the same as laid down in section 8 of the Suits Valuation Act, 1887. The value for purposes of jurisdiction inadvertently stated in the plaint, therefore, cannot be taken to be value for purposes of relief claimed. Suleiman Khan Vs. Muhammad Zaman Khan, PLD 1961 AzadJ. & K48 (DB) (Shah, CJ). S. 8—Valuation in partition suit where the plaintiff is out of possession. In a partition suit where the plaintiff is excluded from possession section 8 of the Suits Valuation Act now applies and the valuation given for the purpose of court-fees must also be the valuation for the purpose of jurisdiction. The proper method is first to make the valuation for the purpose of court-fees, and then to take that value for the purposes of jurisdiction and not vice versa. Patak Ch. Haldar Vs. Sademan Howladar (1957,19 DLR 190. —Partition suit where plaintiff is out of possession. In a suit for partition where the plaintiff is excluded from possession, court-fees must be paid ad valorem according to the market value of the plaintiff’s share in respect of which the suit is instituted and the value for the purposes of jurisdiction must also be determined by the same value which has been computed for court-fees. Khayertullah Mondal Vs. Katnalakanta Saha (1960) 12 DLR (FB) 329 (331). Ss. 8 & 11—Valuation for the purpose of court’s jurisdiction in a partition Suit where plaintiff is in possession is determinable by the value of the plaintiffs share in the entire property. [Held by the majority, accepting AR Cornelius, CJ, disagreeing.] In a suit for partition of joint property by a person, claiming to be in joint possession, the valuation for purposes of jurisdiction is determined by the value of the share of the plaintiff in the property and not by the value of the whole property. In a suit for partition, where the plaintiff is excluded from possession, the plaintiff has to pay ad-valorem court-fees on the market value of the share claimed by him and that value also determines the forum of the trial or appeal. It is difficult to appreciate why in a case for partition, where the plaintiff is in joint possession he must be given the benefit of having his suit tried or his appeal heard by a higher tribunal by valuing his suit according to the value of the entire property sought to be partitioned. Ajizuddin V. Rahman Fakir (1961)13 DLR SC) 191. —Valuation of a suit—Plaintiff’s absolute discretion In a Suit coining under section 7 (IV) (c) of Court-fees Act having, as regards its valuation, no objective standard available, nor have any rules been framed by the High Court under scc9 of mc Suits Valuation Act, plaintiff has a discretion as to the amount at which the relief is to be valued and the court has no power to revise such valuation. Star Film Vs. Sargam Pictures (1954) 6 DLR 466. Sections 8 and 11— The Full Bench considering sections 6, 22, 24 and Order XLVIII Rule 1 of the Code of Civil Procedure, section 8 of the Suit Valuation Act, 1887 as amended by the Civil Courts (Amendment) Act, 2001, sections 8,11,19 and 21 of the Civil Courts Act, 1887 and other relevant provi¬sions of law has come to the conclusion that the District Judge has no jurisdiction to hear the revisional application against the order of the Joint District Judge in a suit the valuation of which is above Tk. 5,00,000 (Taka five lac) and in such matters the revisional application shall lie before the High Court Division under section 115(1) of the Code of Civil Procedure. Bangladesh vs AHM Khurshed All 13 BLC (AD) 114 S. 9—Plaintiff’s discretion to value In a suit coming under section 7(iv) (c) of the Court-Fees Act, having, as regards its valuation, no objective standard available, nor have any rules been framed by the High Court under section 9 of the Suits Valuation Act, plaintiff has a discretion as to the amount at which the relief is to be valued and the court has no power to revise such valuation. Star Film Distributors Vs. Sujan Pictures (1954) 6 DLR 466 (468 rt.h.col), —Provisions of section 8(c) of the Court-fees Act are independent of section 9 of the Suit Valuation Act. The Court is authorized under section 8(c) of the Court-fees Act to hold an enquiry as to valuation of any suit and to assess the same. This is absolutely an independent power consciously given by the legislature to the Court and the legislature must be presumed to have in its mind the provision of Section 9 of the Suits Valuation Act. Section 9 of the Suits Valuation Act is not only an independent section but is also contained in a different Act. Govt. -of East Pakistan Vs. Maharaja King Bikram (1968) 20 DLR 77. S. 9—Section 8C Court Fees Act, gives the Court power to revise the valuation of any suit. But that does not improve matters as regards cases dealt with in section 7(iv)(c) inasmuch as it does not indicate any method or principle by which the court can revise the plaintiff’s valuation in cases where there is no objective standard. Star Film Vs. Sargam Pictures (1954) 6 DLR 466. —In suits for recovery of money or land, there is obviously an objective basis for valuation, namely, the amount of the money to be recovered or the market value of the land. Kumudini Welfare Trust Vs. Pakistan (1959)11 DLR 57. —Valuation of suit. It is the duty of the Court to enquire into the proper valuation of a suit when it has grounds to consider that the valuation given by the party is not correct. AIR 1925 (Pal) 392 (FB)+AIR 1930 (Cal) 65 (DB). S. 11—Objection to jurisdiction. Objection as to trial courts jurisdiction to try a suit on the ground that it was undervalued was raised in the trial Court but that Court-while disposing of this objection fell in an error by repeating undervaluation. On appeal the lower appellate Court found that on a proper valuation suit was beyond the pecuniary jurisdiction of the trial Court and on that finding remanded the case with a direction that the plaint is returned to the plaintiff for presentation to the proper court. Held: Objection to jurisdiction having been raised in the court of first instance, the court of the Appeal below rightly held that the judgment and the decree of the trial Court were hit by the want of jurisdiction. Decision of the trial Court regarding valuation made not only for the purpose of court fees but for the purpose of ascertaining the jurisdiction as well is open to correction in appeal. But where objection as to valuation was for the first time raised in the second appeal, then in view of the provision of section 11 of the Suits Valuation Act, objection to the jurisdiction of a court based on over-valuation or under-valuation should not be entertained by an appellate Court unless there was prejudice on merits. If the objection as to jurisdiction is taken in the court of the first instance, there is hardly any scope for the application of section 11. Nagendra N. Sen Roy Vs. Saiyad Ali Jamadar. (1956)8 DLR 100. —The policy underlying sections 21 and 99 CPC and section 11 of the Suits Valuation Act is same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed .purely on technical grounds, unless it had resulted in a failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical unless there has been a prejudice on the merits. Nagendra N. Sen Ray Vs. Saiyad Ali Jamadar (1956) 8 DLR 100. (Per Cornelius, CJ)—As the point of valuation for purpose of jurisdiction was not taken in the Court of first instance, under s. 11 of the SV Act no omission on the ground of over-valuation or under valuation should have been entertained by the appellate Court, i.e. the High Court, even if that Court were of the opinion that ‘the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits”. Azizuddin Vs. Rahman Fakir. (1961) 13 DLR (SC) 191. S.11—If no objection as to valuation of a suit is taken either in the trial or appellate court—No further objection will be allowed, especially if the party concerned has not been prejudiced in any mater. Gopal Krishna Das Vs. Abdul Kadr Mia (1983) 35 DLR 14 (15). Supreme Court Appeal to the Supreme Court competent, being an order against the Collector even though a departmental appeals, against the Collector’s order, has already been preferred and disposed of by the Board of Revenue. Messers S. A. Haroon Vs. Collector of Customs, Karachi (1967) 19 DLR (SC) 472. —Person appearing before the Supreme Court being an advocate has to make submission in English language. Shamsuddin Ahmed Vs. Registrar, High Court of E. Pak. (1967) 19 DLR (SC) 483. —Question of fact—Interference by the Supreme Court on question of fact is permissible not only when apparent blunder or error committed by lower Court but also when the finding is patently absurd and also it is physically impossible. The Privy Council itself recognized that it would not hesitate to review the evidence in spite of a concurrent finding of the Courts below if “it be shown with absolute clearness that some blunder or error is apparent in the way in which the learned Judges below have dealt with the facts” or “if there had been any principle of evidence not properly applied.” But this at best is a rule of practice only which has gradually developed as a result of the decisions of the Board which are merely illustrative and by no means exhaustive. Federation of Pakistan Vs. Ali Ihsan (1967) 19 DLR (SC) 251. —Supreme Court—State duty to comply with the order of the Supreme Court— Unseemly hurry in passing the order under review deprecated. it is indeed unfortunate that there was an unseemly hurry on the part of the State to pass the second order of forfeiture without first having fully complied with the order of the Supreme Court in letter and in spirit. It was desirable for the State to act in such a manner as to avoid giving any impression whatsoever that it might have acted on a consideration other than purely in the interest of the State and its people. Tofazzal Hossain Vs. Province of East Pak. (1967)19 DLR 529. —Supreme Court’s ruling—Executive Government’s duty to obey the same in letter and spirit. AM Sayem, J— I have been greatly distressed at the manner of implementation, a mere feigning as it is, of the interim order passed by their Lordships of the Supreme Court directing restoration of the press to the petitioner, and the stage at which the impugned order was passed, though the learned Attorney-General insisted that these did not at all concern us and were matters solely between the Supreme Court and some of the respondents. Tofazzal Hossain Vs. Province of East Pak. (1967)19 DLR 529. —Obiter of the Supreme Court—Any observation by the Supreme Court even obiter is binding on the High Court. M. Ismail and Sons Vs. Trans Oceanic Steamship Co. Ltd. (1965) 17 DLR 269. —Appeal to the Supreme Court— Point involving inquiry into facts cannot generally be allowed to be raised for the 1st time. Points involving inquiry into facts or as to which there could have been an answer on facts, if they were raised in the trial Court, cannot in the absence of strong reasons justifying such a course, be allowed to be raised for the first time in appeal. Whether both parties were ignorant of the law on a particular date is a question of fact which could only be decided after an investigation and there was no good ground for its being allowed to be raised as an additional ground of appeal. Haji Abdullah Khaiz Vs. Niso Mohammad Khan (1965) 17 DLR (SC) 481. —Appeal by special leave to Supreme Court— Maintainability of objection—Objection not mentioned in the concise statement cannot be raised for the first time at the time of argument. Taj Din Vs. Mrs. Razia Begum (1973) 25 DLR (SC) 13 Concurrent finding of fact—When it does and when does not interfere. The Supreme Court does not interfere with concurrent findings of fact in civil matters, unless that finding is shown to be based on no evidence or upon mis-reading of the evidence. No such error has been pointed out to us. It cannot, therefore, be accepted that the finding as to the incomplete nature of the gift was open to any challenge at this stage. Abdullah Vs. Abdul Karim (1968) 20 DLR (SC) 205. —Reversal of findings of fact. Supreme Court sets aside findings of fact arrived at by the High Court. The High Court in setting aside the finding with regard to collusion arrived at by the Trial Court has not taken into account the following circumstances: It has not considered the finding by the Trial Court that it could not be believed that the defendant No. 1 would allow a property worth Rs. 15,000/- to be sold for Rs. 3,700/- for his failure to pay the paltry sum of Rs. 300/-which was due on account of municipal Lax. The Trial Court observed that “the PWs appeared to be more reliable than the DWs and I accept the evidence of PWs that the defendant No. 1 is still in possession and the defendant No. 4 has no possession”. This finding has also been reversed without giving any cogent reasons thereof. Regard being had to these facts we are unable to sustain the finding of the High Court. Tripura Modern Bank Ltd. Vs. Khan Bahadur Khalilur Rahman (1973) 25 DLR (SC) 34. Supreme Court’s decision—Binding on all courts, including the High Courts. It is necessary to point out to the learned Judges of the High Court the constitutional duty that any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law is binding on all other Courts in Pakistan and that all judicial authorities throughout Pakistan shall act in aid of the Supreme Court. Chowdhury Muhammad Khan Vs. Sanaullah, (1973) 25 DLR (SC) 45. —Supreme Court’s power of superintendence—Dictum of the Supreme Court of India recalled. It is interesting to note that though the power of superintendence has been cornered on the High Court, the decision of the Supreme Court of India in the case of Baldeo Singh, AIR 1957 SC) 612, is an authority for the proposition that the Supreme Court (in our country the Appellate Division) can also exercise the power of superintendence in the appropriate circumstances. AT Mridha Vs. State (1973) 25 DLR 335. —Application for special leave to appeal— Objection that the appeal did not lie before the High Court was not taken before the High Court—This fact was not brought to the notice of the Supreme Court dealing with the application for special leave to appeal—Had it been so brought to its notice special leave would not have been granted. M/s. Shirkag-i-Ahbab Vs. National Bank of Pakistan (1969) 21 DLR (SC) 275. Jurisdiction—Matters which lie within the jurisdiction of the Appellate Division of Supreme Court cannot under a misapprehension be usurped by a High Court Divisions. When the matter ultimately came before the Appellate Division of the Supreme Court regarding the question of attachment of four Trawlers (belonging to the defendant) the Appellate Division passed an order to the effect that three Trawlers should be released from attachment order and only one will remain under attachment under Or. 38, r. 5, CP Code. It however appears that certain officer of the Government. allowed the 4th Trawler to go. Thereupon when the matter came before the High Court Division is proceeded to take certain penal action against the offending officer for violation of the Court order regarding the Trawler which has been allowed to go. The matter again came up before the Appellate Division on being moved by the officer concerned. Held: The High Court Division was under a clear misapprehension. If the party concerned violated the order regarding the attachment of the Trawler concerned it is the order of the Appellate Division which has been violated and therefore the High Court Division acted without jurisdiction in proceeding to take action against the offending officer. In these circumstances High Court Division’s order is infructuous. Md. Muzaffar Hossain Vs. King Fishers Industries Ltd. (1984) 36DLR (AD) 102. Superior authority’s interference. When a subordinate authority is authorized to dispose of a matter it is legally seized of, any opinion by a higher authority in the performance of its duty is illegal and vitiated the legality of the order. BS Industries Vs. Dy. Registrar (1968) 20 DLR 787. —Fresh point involving investigation into facts disallowed in appeal The point that appointment in Class I post by the Postmaster-General without the approval of the President was itself bad, was not raised before the High Court. This point when raised before the Supreme Court was disallowed since investigation into facts may be necessary to find out whether approval of the President was or was not obtained. The Postmaster-General, Eastern Circle (EP) Vs. Muhammad Hashim (1971) 23 DLR (SC) 49. —Supreme Court’s power of superintendence. The Supreme Court (in our country the Appellate Division) can exercise the power of superintendence in the appropriate circumstance. AT Mridha Vs. The State (1973) 25 DLR 335. Trade Marks Act Trade Marks Act (V of 1940) Sections 8 and 10 In deciding the question of similarity between the two marks the test is whether a member of the public is at risk to be confused or deceived. Actual confusion or deception is not necessary, meré likelihood of confusion or deception will be enough, even if the product is in the market for some time. [ Abdul Haque vs Jamal Uddin Ahmed, 73 DLR (AD) 33] Transfer of Properties Act, 1882 Section — 3 Machineries of a mill attached to the ground whether immovable property— Character of machineries to attain the character of permanent attachment so as to become an immovable property must partake of the character of the attachment of trees and shrubs rooted to the earth — The test is whether such attachment is for permanent beneficial enjoyment of the immovable property Mill machineries cannot be said to be permanent fixtures to assume the character of immovable property—General Clauses Act, 1897(X of 1897), S. 3(25). Bangladesh Vs. Anil Ranjan Chowdhury and others, 5BLD (HCD) 105 Ref: A.I.R. I 969(Mad) 346; A.LR. 1960 (Cal) 33 1; A.I.R. I 963(Nag) 224 — Cited. Section —3 Attesting of a document — When attestation makes one a contesting party — Where it is shown by other evidence that when be-coming an attesting witness, a person must have fully understood what the transaction was, his attestation may support the inference that he was a consenting party — He cannot take advantage of his own wrong — He cannot both approbate and reprobate at the same time. Shrish Chandra Das’ Vs. Sri Sri Chatteswari Debi Bigraha, represented by She- baits : Chandra Sekhar Chakraborty and others, 6BLD(AD)291 Ref: AIR. 1928 (PC) 20; (1898-99)3 C.W.N. 207; 1 BLD (AD) 91; 37 DLR (AD) I 29;—Cited. Section — 5 According to Transfer of Property Act, a transfer means voluntary act of transfer by which real right in the property passes from one person to another. Section 5 of the Transfer of Property Act has not spelt out transfer in broad details; Government of Bangladesh represented by the Deputy Commissioner, Bakerganj Vs. Aziz Molla being dead his heirs : Md. Mozibur Rahman and others, 11BLD(AD) 247 Ref: l3Moor Ind.App.585(PC); I.L.R.339 (Cal)967(983-984); I 6C.L.J.436; A.1.R. 1915 (Cal)819; A.I.R.1916 (Cal) 136 (141; A.I.R. 1966 (SC) 337; 12 C.W.N. 478; A.LR,1957 (SC)1395; A.I.R.l968 (Pat) 274; A.I.R.1977 (Cal)509; 84 C.W.N. (1979-80) 688; A.I.R. I 960(Madras)33; AIR. 1954 (Bombay) 95; I 9DLR 33;— Cited. Section —10 Restraint on transfer — Disposition of property by a will is not a transfer within the meaning of the Transfer of Property Act — Giving life interest to the beneficiaries to enjoy usufructs of the properties with a restraint on transfer of the properties is permissible — Such restraint is not void — Provision of section 10 of the Transfer of Property Act is not applicable. Narendralal chowdhury and others Vs. Bimal Kanti Chowdhuiy and others, 3 BLD (HCD) 40 Ref: 13D.L.R.(SC)177—Cited. Sections — 14 and 54 Rule against perpetuity — Rule against perpetuity is not attracted in the case of a contract for sale of immovable property and the contract for reconveyance of immovable property. Abdul Quddus Vs. Anjuman Khatun and others, 4BLD(HCD)237 Section-41 The case of the plaintiff was that by 3 registered sale deeds exhibits-2, 2(A), 2(B), he transferred the suit land to defendant 3 on 22.04.1974 and the defendant -3 in his turn, by another deed of conveyance registered, exhibit- 1, on 11 same date agreed to recovery the said land to the plaintiff on receipt of Taka 6,000.00—if one wants to be Projected under Section -410 the transfer of property Act, he is required to prove that he took all reasonable care to ascertain the title of his vendor. He inquired at least in the local Sub-Registrars office to know if the land had any charge or encumbrance or not to establish his bona fide. He would naturally try to get all the documents of title and possession from his vendor. Onus is very heavy on him. There is no onus on the other side the defendants 1 and 2 pleaded that they were bona fide purchasers for value without notice of the Ekrarnama. But they did neither plead nor lead any evidence that they took any steps to ascertain the title of their vendor, defendant 3 or their purchased land. i.e. the suit land did not have any charge or encumbrance. They did not make any inquiry even in the local registration office. They did not want to get the documents of title or possession. In their deeds, exhibit A(2) and A(3) though executed and registered about four years apart. It is written in verbatim, to trace, the title the defendant 3 is ‘খরিদ সূত্রে মালিক দখলকার ও মালিক বটে’ This vital fact of purchase from the plaintiff was deliberately suppressed exhibits A(2) and A(3, Purpose was very clear, not to divulge the knowledge about the Ekramama. In his deposition, defendant 1 as DW- 1 stated that the plaintiff transferred the land to the defendant 3 by an out and out sale, In cross examination, he admitted that defendant 3 on being asked told him that the original Kabala was lying with the plaintiff. He did not try to obtain the Kabala. Defendant 2 as DW-2 deposed in the same vein that original Kabala was with the plaintiff and he did not try to get the Kabala. Both of them however, stated that they purchased seeing the copy of the Kabala, But they did not adduce the copy to probe their bona fide. Mrs. Wahida Begum & Ors. Vs. Tajul Islam & Ors. 8 BLT (HCD)-238 Section-52 The Miscellaneous case for pro-emption was disposed of and allowed on 27.06.1983 Aforesaid two deeds of re-conveyance were executed on 28.02.1983. The finding of the trial court that the deed of re-conveyance is hit by doctrine of lis pendents under section – 52 of the Transfer of Property Act was rightly arrived at. Jahangir Alam Vs. Sri Sailish Chandra & Ors. 9 BLT (HCD)-78 Section-52 In the instant case the purchaser did not adduce any evidence to show when the purchaser go the purchased land mutated in his name. But. Exts. Uma seris clearly show those were issued during the Pendency of the proceeding for pre-emption. If it is so, such mutation or subdivision is not based on any lawful order of a Revenue officer. Because the order admittedly obtained without service of notice upon the pre-emptor and his brothers and sisters must be also hit by the doctrine of lis pendans under Section 52 of the transfer of property Act. Harunur Rashid Vs. Afroza Khanam & Ors. 9 BLT (HCD)-135 Section —52 During pendency of the pre-emption Case If inspite of re-transfer or reconveyance to the original vendor subsequent to filing of the case seeking per-emption, the pre-emption is allowed, then the Principle of us pendense also will be applicable in the pre-emption case. Ambiya Khatun & Ors. Vs. Noor Ahmed & Ors 13 BLT (AD)206 Section-52 The effect of section 52 of Transfer of Property Act is not to wipe out a sale pendentelite altogether but to subordinate it to the rights based on the decree or the order passed in the proceeding. The pendentelite takes the property subject to the result of the suit or proceeding. It is to be noticed that the right under the decree or order is sought to be protected by the doctrine of lis pendens. But if proceeding cannot yield any result creating any right in favour of a party to the proceeding, the question of applying the Doctrine does not arise. RAJUK & Ors Vs Habibur Rahman & Ors 13 BLT (HCD)506 Secton-52 & 56 Doctrine of Lis pendence Appellant Bazlur Rahman transferred the disputed land to appellant Bushra Complex Ltd. when there was no civil suit pending. Therefore the High Court Division committed an error in holding that the transfer the took place during the pendency of suit and was hit by the doctrine of lispendence. Bushra Complex Ltd. & Ors Vs. Syeda Sabera Khatun & Ors. 12 BLT (AD)-40 Section-53(A) Held We agree with the finding of the High Court Division that the petitioner Zubeda Ahmed did not acquire any title by way of gift from Hafiz Mohammad Ahmed who himself had no title but merely held power of attorney to transfer. Mrs. Zubeda Ahmed Vs. Bangladesh & Ors. 10 BLT(AD)-32 Section-53A read with President Order No. 16 of 1972 Article-10 (1) Respondent No.1 has not brought on record any material to establish that on the date of agreement i.e. on December 29, 1970 as stated in the agreement for sale relating to putting respondent No.1 into possession of the property or that on any date before February 28, 1972 he was put into possession of the property by the owner Wali Mohammad or his attorney Abdur Rahman (respondent No.4) or that he obtained possession before 28-2-1972 and that was in possession at the time when P.0.16 of 1972 become operative. The respondent No.1 in view of the provision of section 5(2) of the Ordinance was required to establish the said facts while he approach the Court of Settlement to get the property released from list of abandoned property, but did not do so, since the statement in the agreement for sale as to putting the respondent No.1 on the day of agreement on receiving part of the consideration money into possession of the property is absurd one because of the fact the agreement was executed at Karachi and as such it was physically impossible as stated in the agreement for sale that on receipt of the part of the consideration money the intended seller upon putting the proposed buyer into possession parted with his possession of the property in question. In the background of the discussion as on the promulgation of President’s Order No.16 of 1972 the property assumed the character of abandoned property and that as per provision of article 10 of the President’s Order No.16 of 1972 the property vested with the Government and that possession of the property in question, though claimed by the respondent No.1, but as was not established was with him on the day P.O. No.16 of 1972 came into force and that as no material has been brought on record whereupon it can be said the possession claimed by the respondent No.1 is of the kind of possession as is being contemplated by the provision of section 53A of the Transfer of Property Act, as such possession of the respondent No.1 of the property in question is not protected under section 53A of the Transfer of Property Act. Government of Bangladesh Vs. Mr. K.M. Zaker Hossain 12 BLT (AD)236 Section-54 Receipt of the Consideration money. Adverse Possession—From the evidence we find that the plaintiff has categorically deposed that he has been in possession on the basis of lease granted through receipt and that the lease has been supported by the receipt issued at a time when the plaintiff was present and the same has been supported by P.W. 2. Defendant No. 1examined on commission stated that he has transferred the suit land in favour of the plaintiff on the basis of receipt which was written in presence of the witnesses and delivered the huts to the plaintiff on receipt of the consideration money and duly signed the receipt evidencing receipt of the amount on 14.02.1949. Since the receipt is not a deed of title could not confer title to the plaintiff under the provision of section 54 of the Transfer of property but the uninterrupted adverse and hostile possession of the plaintiff over a period of 12 years from the date of 14 February 1949 upto 1961 i.e. the period prior of alleged declaration property as enemy properly, the plaintiff has acquired title by adverse possession. Aranangsha Datta & Ors. Vs. Satish Chandra Das 12 BLT (AD)-27 Sectiion-58(C) Section 58(C) of the transfer of property Act contemplates mortgage by conditional sale wherein it has been clearly laid down that where the mortgagor ostensibly sells the mortgage property on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is a mortgage by conditional sale. The law permits for such a document. Asmat Ali Vs. Abdur Rafique Mridha & Ors. 9 BLT (AD)-77 Section 105 & 106 The monthly tenancy is not heritable but it is a contract between individual and on the death of any of the parties the contract terminates—after the death of the tenant, his heirs cannot be substituted in the suit, in his place. Abdul Malek & Ors. Vs. Mst. Rezia Begum 9BLT(HCD)-338 Section-105 and 107 If we consider Section 105 with section 107 of the Transfer of property Act it will be clear that in order to constitute lease of an immoveable property of the nature as claimed by the plaintiff a registered instrument signed by both the Government, that is, defendant No. 1 and the plaintiff was necessary mentioning a period and a price to be paid or promised to be paid which is totally absent in this case. I am of the view that the terms ‘allotment’ and ‘allottee’ allottee cannot be synonymous to the terms ‘lease’ and ‘lessee’. Sugar & Food Industries Vs. Kashem Motors 12 BLT (HCD)-56 Section-106 read with Premises Rent Control Ordinance Valid and legal notice —agreement, clause speaks for one months notice in order to terminate the tenancy – in the instant case, a notice dated 18.01.1974 was served upon the respondent-tenant determining the tenancy with effect from 28th day of February 1974 and though the period of notice dated 18.01.1974 determining the tenancy with effect from 28.02.1974 was more than period of 30 days contemplated by Ext. 1 the same do not in any way prejudice the petitioner or suffer from any illegality or infirmity in the service of notice determining the tenancy and is in consonance with the terms of Ext. 1 and the provision of law in spite of the fact that the payment of rent was according to the English calendar month and only 15 days notice is required for determination and termination of the tenancy under the provision of Section 106 Transfer of Property Act. In that view of the matter allowing more than one months notice to determine the tenancy has not contravened any of the provision of the Transfer of property Act or the terms of Ext. 1 as there was no alteration or variation thereof and the same is valued compliance with the agreement between the parties and thus the notice determining the tenancy is also a valid one. Sontosh Mukar Das Vs. Hajee Badiur Rahman. 10 BLT (AD)-59 Section-107 Abdul Hakim raised construction in the suit land is not disputed by the defendants. In view of such facts, though the suit land was recorded in the name of the defendants, I am of the opinion that such record will not stand on the way in getting a decree by the plaintiffs in the suit since the plaintiffs have acquired a heritable, non-ejectable right in the suit land, particularly when the said S.A. record which. was prepared after 1960, after the NonAgricultural Tenancy Act 1949 came into force. I am further of the view that the plaintiffs have acquired a right which cannot be said anything less than title in the suit land. Ramjan Mia & Ors. Vs. Idu Mw & Ors. 10 BLT (HCD)-229 Section- 111(g) Only requirement of clause (g) is that the lessor does some act showing his intention to determine the lease and there is no reason why the lessors election by way of a notice must be prior to the institution of the suit. In a case of forfeiture of tenancy for denial of title, written notice of lessor’s intention to determine the lease is not compulsory and must be optional as the notice is not a part of the cause of action for such eviction and that the cause of action is the denial of the landlord’s title resulting determination of the tenancy by forfeiture. Zohra Khatton & Ors. Vs. Ekamul Haque Chowdhury & Ors. 10 BLT (AD)-171. Section —41 Transfer by ostensible owner — Circumstances against protection of purchaser’s title — In the written statement though the defendant has made out a case of bonafide purchase, no positive evidence as to his bonafide has been proved — The plaintiff and defendant No. 2 resided in the same house and they are first cousins — It is therefore likely that defendant No. 2 knew that the plaintiff purchased the land in the benami of his minor son — The defendant purchased the land without the title deed of his vendor or without ascertaining who paid the rents in order to indicate good faith. Abdul Gafur Vs. Ali Akbar and another, 4BLD(HCD)326 Section—41 Benami transaction —Whether a deciee against a benamdar is binding on the real owner — Whether real owner can agitate in another suit that the decree obtained against his benamdar was fraudulent and not binding on him — It is now a settled principle of law that a decree on the ostensible owner is binding on the real owner — The plaintiff obtained the decree against the benamder as fraudulent knowing fully well that the real owner defendant was in possession—When a decree is obtained by the plaintiff practising fraud it is not necessary to file a separate suit for avoiding such decree but the said decree can be impugned in another suit by such person aggrieved by such fraudulent decree—The real owner can avoid that transfer by his benamdar provided that no reasonable care was taken by the transferee in getting the transfer from the benarndar—Evidence Act, 1872 (I of 1872), S. 44. Sultan Ahmed Vs. Md. Waziullah and others, 7BLD(HCD)235 Ref. 24 DLR63—Cited. Section—44 Section—44 Section —52 Lis pendens in pre-emption proceeding Lis pendens — The expression “otherwise dealt with” in section 52 of T.P. Act covers subdivision of holding — Mutation of holding during the pendency of a pre-emption proceeding comes within the mischief of the doctrine of lis pendens—Such mutation will not bar the right of pre-emption — NonAgricultural Tenancy Act, 1949 (XXIII of 1949), S.24 — State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), S. 117. Md. Abdur Rouf and others: Vs. Ahmuda Khatun and others, 1BLD(AD)269 Section—52 [Quaere: Whether Safeguard of section 52 T.P. Act is available in case of purchase by a person during pendency of suit for valuable consideration without notice of the contract — Specific Relief Act, 1877 (I of 1877), S. 27(h).] Section—52 Doctrine of lis pendens—Its applicability in a pre-emption case — The right of preemption, in a case of the present nature, is rot absolute but is subject to the agreement r reconveyance — If the laxd has already bt reconveyed during the pendency of the preemption case the doctrine of lis pendens cannot come to the rescue of the pre-emption — State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), S. 96. Serajul Haque and others Vs. Ahnzed Hussain and others, 4BLD (HCD) 194 Ref: 35DLR (AD) 225; I 3DLR287—Cited. Section — 52 Doctrine of us pendens —Whether applicable in case of pre-emption proceeding— Doctrine of us pendens does not prohibit reconveyance of the property to the vendor during pendencyof the pre-emption case. Md. Abbas Ali Vs. Md. Osman Au and others, 6BLD (HCD)131 Section — 52 Doctrine of us pendens— The sale of the suit land by the heirs of the original plaintiff during the pendency of the second appeal will be governed by the doctrine of lis pendens. Shangsharer Nessa and others Vs. Mafizur Rahman and others, 12BLD (AD) 195 Section — 53A Part Performance of a contract Contract — Time of performance — Part performance — Time is essence of the contract when both parties are conscious that the transaction would have to be completed within the time fixed — Contract failed or terminated on the expiry of such time — Defendant in possession of property under the contract not entitled to protection under section 53A of T.P. Act—Bar under the proviso to section 53A does not apply against a party who purchased the property after termination of thecontract though with the knowledge of the defendant’s contract—Contract Act, 1 872 (IXof 1872), S. 55. A.N.M. Shamsul Haque Vs. Most. Jahanara Begum, 2BLD (HCD) 65 Ref: 42C.W.N.630; A.I.R.1967 (Bornbay)34; 27DLR129; A.I.R.1970 (Rajasthan) 167; A.I.R. I 965(S.C.)27 I; A.I.R. 1962 (Kerala)86;A.I.R. l962(Madras)423;PLD 1964(La- hore)510;28DLR(AD)5 l2;—Cited. Section — 53A Doctrine of part performance in unwritten contract — Whether oral contract could give rise to a relief under the doctrine of part performance — This is the relief that has been given by section 53A of the T.P. Act but the condition precedent for attracting the section is the written agreement which in the present case is not to be found. Mehar Khatun and others Vs. Sarat Kumar Kanangoo, 5BLD (AD)1 Ref: AIR. 1 950(SC)i; A.I.R. I 970(Cal) 444—Cited. Section — 53A Doctrine of part-performance— One who places reliance on the doctrine of part performance of contract succeeds only when he has been able to prove a contract — Whether the plaintiff in defending his possession can invoke the provision of section 53A of TP. Act — In view of the finding that the agreement for sale was not a genuine document the plaintiffs possession is not referable to it The plaintiff is not entitled to the benefit of the section. Abdul Kader and others Vs. A.K. Noor Mohammad and others, 5BLD (AD) 33 Ref: (1973)25DLRI; (1955-56)60C.W.N. 714; A.I.R. I 939(All) 611 — Cited. Section — 53A Doctrine of part performance— Whether one can succeed on the doctrine when no case was made out in the written statement—On the Showing of the plaintiff himself the defendant was in possession of the suit land in furtherance of his bainapatra—The equitable principle as given in section 53A of the T.P. Act call be invoked by the defendant for protecting his possession. Mir Abdul Au Vs. Md. Rafiqul Islam, 8 BLD (AD) 149 Section—53A Part Performance — Plea of part performance (that the plaintiff was delivered possession in a part of the property) — Whether tenable in a probate proceeding — Plaintiff will not be without remedy for execution of a decree (if it is made in her favour) — Principle of part performance creates no real rights — It is an estoppel between the proposed transferee and transferor which shall have no operation against third persons — The Succession Act, 1925 (XXXIX of 1925), S. 211. Shubra Nandi Majumder Vs. Mrs. Be- gum Mahmuda Khatoon, 10BLD (AD) 84 Ref: 53C.W.N. 374(PC) — Cited. Section — 58(C) Whether sale with a contemporaneous agreement for resale constitutes a mortgage or an out and out sale — In view of amendment of the T.P. Act a transaction of sale cannot be treated as a mortgage even if the sale was made with a condition of resale unless the condition is embodied in the sale deed. Serajul Hoque and others Vs. Ahmed Hussain and others, 4BLD (HCD) 194 Ref: 12 DLR 849; A.I.R. 1946 (Nag) 264;—Cited. Sections — 105 and 106 Monthly tenancy — Whether heritable — By a tenancy from month to month a right to occupy and enjoy the premises is created — This right is based on personal relationship between the landlord and the tenant — With the death of the tenant the tenancy comes to an end. Abdul Latif and another Vs. Abdul Mannafa,zd others, 3BLD(AD)37 Ref: 32 DLR(AD) 170—Cited. Section — 105 Lease and Licence — Distinction of — Exclusive possession of land cannot convert a licence into a lease — Intention of the parties is to be looked into whether the agreement creates lease or licence — Conduct of the parties is immaterial where there is a written document creating the relationship between the parties — Easement Act, 1882 (V of 1882), S. 52. The New Dhamai Tea Estate Ltd. Vs. Arjun Kurmi 3 BLD (AD) 121 Ref: 16 DLR(SC)169; A.I.R. 1965(SC) 610; (1952) 1 All. E.R.. 149(1952)1 All. E.R. 199; (1960)1 All. E.R. 348; (1963)3 All.E.R. 77; (1957) 3 All .E.R 563; (1963) 2 All. E.R. 647; — Cited. Section — 106 Termination of tenancy by notice Service of notice u/s. 106 T.P. Act — Notice sent by registered post and returned with endorsement “refused” — Notice is presumed to be served — Examination of peon to prove the endorsement is not necessary — Mere denial of the tenant that he did not receive the notice or that the notice was not tendered to him is not sufficient to rebut the presumption— General Clauses Act, 1897 (X of l897), S. 27—Evidence Act, 1872 (I of 1872), S. 1 14(e)(f). Dr. Jamshed Bakht Vs. Md. Kamaluddin, 1BLD (HCD) 97 Ref: A.I.R. 1915 (Cal) 313; 39 C.W.N. 934; 51 C.W.N. 650; 52 C.W.N. 659; 6DLR 267; A.I,R. 191 8(PC)102; A.I.R. 1958 (Cal) 251; 22DLR 664; 1 7DLR(WP)26—Cited. Section—106 Notice Abandoned property—Building in urban areas — Abandoned premises let out by Government to private person on monthly rent — General law of landlord and tenant will apply in respect of termination of such tenancy — Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 (P.O. 16 of 1972), Articie—5; Bangladesh Abandoned Property (Buildings in the Urban Areas) Rules 1972, Rule-lU; Premises Rent Control Ordinance, 1963(XXof 1963), Ss. 18 and 19. There is no provision either in P.O. No. 16 of 1972 or in the Rules framed there under laying down any provision for ejectment of any private allottee from the premises in case the Government requires the premises bonafide in public interest or on account of any default in paying monthly rents as such. In such circumstances, there is no other option left with the Government as the substituted landlord of an abandoned building but to take recourse to the normal law of termination of a monthly lease and tenancy under section 106 of the Transfer of Property Act read with the relevant provisions of sections 18 and 19 of the Premises Rent Control Ordinance. In the absence of any specific statutory provision providing for any special right of the Government to summarily evict and eject a private allottee of a Government building, the normal rule of landlord and tenant will apply. Bank of Credit and Commerce International (Overseas) Ltd. Vs. Bangladesh, 1BLD (HCD) 273 Section — 106 Service of notice by lapse of time Service of notice by registered post— Service shall be deemed to have been effected after lapse of a reasonable time— General Clauses Act, 1897 (X of 1897), S. 27. Theere is no controversy neither regarding the proper address nor regarding the posting by registered post. In these circumstances Appellate Division held that the conclusions drawn by the learned Judges of the High Court Division have not been correctly drawn. The provision of section 27 did not leave any scope for drawing any adverse presumption regarding service of notice. In case of a letter sent by registered post according to these provisions. as soon as the posting by registered post of a properly addressed letter containing any notice or document to be served, by post is proved such service of notice shall be deemed to have been effected after the lapse of a reasonable time. Section— 106 Service of notice on the wife’s brother at the suit premises— There has been compliance with the terms of section 106 of the Transfer of Property Act. Hajee Khabiruddin Alimed Vs. Muhammad Salam Kabir, 3BLD (AD)53 Sections—106 and 110 Notice to determine tenancy — When the notice should expire — In view of the absence of any objection as to the precise fulfillment of the period of notice on the expiry of the tenancy it is not necessary to go into the validity as to the meticulous observance of the exact date of expiry of the tenancy upon which the notice should also expire. Nur Banu Vs. Noor Mohainmad and others, 4BLD (AD) 69 Ref: (1897) I.L.R. 24(Cal)720: (1920) I.C. 593; (1932)37 C.W.N.(PC) I ;—Cited. Section — 106 Sufficiency of quit notice — in case of default in payment of rent notice of three months is not required according to the terms and conditions of bharanama— Therefore on the ground of default in the payment of rent the quit notice under section 106 of the Traiisfer of Property Act duly served on the tenant terminating the tenancy is valid, legal and sufficient. Fazal Karim Vs. Sree Dulal Kanti Baidya and another, 6BLD (HCD)10 Section — 106 Termiantion of tenancy— Termiantion of tenancy by notice whether necessary to evict a tenant — Whether termination of the tenancy in terms of the agreement entitles the landlord to evict the tenant — The tenant is liable to be evicted if he tenant has incurred – the liability under the Rent Control Ordinance, otherwise not. even if the tenancy has been duly terminated by service of notice. Fazal Karim Vs. Sree Dulal Kanti Baidya and another, 6BLD (HCD) 105 Ref: A.l.R. 1979 (SC) 1745 — Cited. Section — 106 Notice found valid and sufficient by the trial Court— Appellate Court declined to embark upon a fresh inquiry into the validity of the notice. Mrs. Zahura Khatun and others Vs. Mrs. Rokeva Khatun and others, 10BLD (AD) 282 Section—106 Sufficiency of notice for eviction of tenant When the tenant raises the question of sufficiency of notice and asks for a notice of a longer duration on the ground of the tenancy being for manufacturing purposes within the meaning of section 106 of the Transfer of Property Act, the burden of proof lies on the party who claims it to be so. The extent of the burden is to establish that the exclusive pur- pose of the lease was the manufacturing pur- poses. Nani Gopal Ghosh and another Vs. Pro fessor Md. Ishaque, 11BLD (AD) 233 Ref: A.I.R. 1954 (Cal) 224; A.LR.1981 86 (Gui); A.I.R. 1982(SC) 127—Cited. Section— 107 Lease of immoveable property— Whether valid lease may be created by an unregistered deed of lease — Section 107 TP Act provides that a lease of immoveable property for a period exceeding one year can be made only by a registered instrument—This implies that a lease for a period not exceeding one year may be made by an unregistered instrument — Even if a lease is created for a longer period by an unregistered instrument, it will be valid only for one year. Khodeja Begum and another Vs. Sagar-mal Agarwala alias Sambamal Agarwala and another, 7BLD (AD) 147. Ref I8DLR 107—Cited Section—108(e) Doctrine of frustration—Whether it applies to contracts only or to leases also— Whether provision of section 108(e) of the Transfer of Property Act or Doctrine of Frustration as contained in section 56 of the Contract Act will apply in case where the entire structure of the tenancy was destroyed— Where only a material part of the tenancy is destroyed or otherwise rendered substantially permanently unfit for the purpose for which it was let at the option of the tenant the lease will come to an end—But where the entire subject matter of the tenancy is destroyed the provision of section 108(e) of the Transfer of Property Act will not be applicable — The doctrine of frustration as embodied in section 56 of the Contract Act will apply in case of destruction of the entire subject matter of the tenancy; Azizur Rahman and others Vs Abdus Sakur and others, 4 BLD (AD) 287 Ref 22DLR 126 A JR 1968(SC) 1024 A JR 1961(Cal) 70 A 1R 1950(CaI)441 64 C.W.N. 932; PLD 1970 (SC) 185; (1981) 2WLR 45 Cited Section 111(g) Undesirable tenant — Provision for determining the tenancy — There is no provision of law for determining a tenancy on the ground of the tenant becoming undesirable unless he comes within the mischief of for- feiture under the T P Act Mrs Mana Keshi Drozano Vs Messrs Hassan Movies Ltd represented by its Man- aging Director, 9 BLD (AD) 129 Ref A I R I 962(Cal)597 — Cited Section — 113 Default in payment of rent by the tenant—Whether such payment of rent in a lump makes the tenant a defaulter—Whether there is waiver and acquiescence of the default on the part of the landlord by acceptance of rent for several months in .a lump—A tenant making payment of rent in lump shall ordinarily be treated as defaulter unless there is a contract to the contrary or such payment is covered by waiver and acquiescence on the part of the landlord — Evidence shows that there was an arrangement between the landlord and tenant that karmachari of the landlord would come and collect the rent. This practice continued for 16 years — The consistent view of this Court is that waiver is a question of fact and is to be taken at the earliest opportunity and must be established on evidence — The defendant had made Out a case of waiver and acquiescence and the judgment of the High Court Division is set aside—Premises Rent Control Ordinance 1963 (XX of 1963) S18(5) Md. Golam Hossain Vs. Mst. Asia Khatun Chowdhury, 8BLD (AD) 36 Ref: 4BLD298; I B .C.R.(AD)4 1; 31 DLR (AD) 183; 6BLD (AD)354—Cited. Section — 116 Lease — Holding over and its effect — As the lessors accepted rents from the lessees, the lessees continued to hold over—The arbitration clause of the agreement of lease that had already expired cannot continue to be a term of holding over—The lease is renewed for the purpose for which the property was leased — But it will not be correct to say that such renewal amounts to continuation of the terms like arbitration clause of the expired lease. Bangladesh House Building Finance Corporation Vs. MIs Moinuddin Akhtaruddin Chowdhury, 3BLD (HCD) 282 Ref: A.I.R.1962 (SC) 1810; A.I.R. 1963 (SC) 90; A.I.R. 1953 (Cal) 349; A.I.R, 1942 (Oudh) 231; — Cited. Section—116 Non—payment of rent whether extinguishes a tenancy — Non-payment of rent is no proof of non-existence of the tenancy and the tenant cannot question landlords title unless he discontinues tenancy and restores possession to the landlord — Once a tenancy is created, it will be presumed that it is continuing unless it is shown that it has ceased. Hake Abduls Sitar vs. Mohiuddin and others, 6BLD (AD) 224 Section — 116 Right of heirs of late tenant — A tenancy is not heritable — On the death of a tenant his heirs are not under any obligation to continue the tenancy, In the same way, the landlord is not bound to keep the lease alive — If the heirs continue to stay on they have been rightly held to be tenants by holding over. Hake Abduls Sitar Vs. Mohiuddin and others, 6 BLD(AD)224 Ref: 32 DLR (AD) 170 — Cited Section—116 Tenant by holding over and tenant by sufferance — A tenant continuing in possession after the determination of the lease with consent of the landlord is a tenant by holding over and a tenant remaining so without the consent of the landlord is a tenant by sufferance — Assent of the lessor may be inferred from the acceptance of rent from the lessee or demand of rent or suit for rent — No question of holding over by implication arises in the case of a tenant who has been repudiated by the landlord. Nakul Das Mridha Vs. Bangladesh and others, 6BLD (HCD)331 Ref: 22 DLR (SC) (1970)395; — Cited. Section — 116 Holding over — Whether a lessee under an unregistered lease can hold over and continue as a tenant — A lease for a period not exceeding one year may be made by an unregistered document — If the lessee on the expiry of the lease period of one year continues in possession with the consent of the lessor, the principle of holding over will be attracted in this case — It is the possession of the lessee which is of fundamental importance in the case of holding over — Possession of a monthly tenant is also landlord’s possession — This possession is sufficient for bringing his case within the ambit of ‘holding over. Chorea Begum and another Vs. Sagarmal Agarwala alias Sambamal Agarwala and another, 7BLD (AD) 147 Ref: 1 8DLR 107 — Cited. Section — 116 When it is no tenancy by ‘holding over’ — Reading the letter and the notice of the respondent as against the appellant’s letter expressing willingness to pay rent with moderate increase, it is found that the respondent was in search of grounds for the appellant’s ejectment — The respondent gave a go-by to the previous agreement and demanded renewal of the tenancy on fresh terms and con-ditions in such circumstances requirements of holding over are not fulfilled. Mrs. Maria Kasha D’rozario Vs. Messrs Hassan Movies Ltd. represented by its Managing Director, 9BLD (AD) 129 Ref: AJ.R. I 962(Cal)597 — Cited. Section — 116 Ejectment of tenant Doctrine of estoppel — Applicability of — A tenant during the continuance of tenancy cannot deny his landlords title if he was inducted into possession by the landlord. Md. Shafluddin Vs. Mahboob Hasan, 9 BLD (HCD) 108 Section— 116 Heirs of deceased tenant — Their legal status — The heirs of the deceased tenant continuing in possession though not on the basis of any lease cannot be said to be in possession as trespassers and their possession would not be unconscionable to hold as possession of tenants by sufferance — The execution case against them is legally enforceable as such tenants. Kalidas Sarma and others Vs. Pradip Das alias Shambhu and others, 9BLDHCD) 162 Ref: 1934(Ali) 474; 32DLR P) 170: 38 DLR (AD)97: 2 B.C.R.(AD)428 — Cited. Section — 116 Suit for ejectment — Tenant by holding over — Whether during the holding over the terms arid conditions of the old tenancy agreement would continue — The contention that by holding over the original expired lease agreement would be revived is fallacious—The renewal of a lease in case of a holding over does not mean a continuation of the terms and conditions of the old lease but a new lease where there is no meeting of minds as to the terms and conditions on which the lease is to be continued. Dr. Suriya Hoscain vs. Mrs. Taherunnessa, 9BLD (HCD) 319 Ref: I4DLR 826; 22DLR59; 39 C.WN 972: 25DLR 282; 22DLR56; 25DLR 282— Cited. Sections— 123 and 129 Gift by a Muslim of immoveable property — Section 129 of the Transfer of Property Act is an exception to section 123 of the same Act — This exception is available only to Muslims as to the transfer of property by way of gift. Distinction between agricultural or non-agricultural land— There is no indication in section 129 restricting its application to any particular class of land — After the enactment of S.A.T Act very little distinction is maintained between incidents of agricultural land and non-agricultural land. There is no such Clause in section 89 of the Act or section 26C of the B.T. Act as to exclude the operation of section 1 29 of the Transfer of Property Act in case of transfer of agricultural land. If land as provided in section 129 has exempted the owner of urban property, which is generally more valuable than agricultural land, from transferring the same by a registered instrument, why should greater hardship be imposed on the holder of agricultural land by the requirement of a registered instrument for transferring his interest therein by way of gift judged from different view points. The effectiveness of an oral if of immoveable property when property made has not been curtailed by the language of section 26C of the Bengal Tenancy -Act or section 89 of the State Acquisition and Tenancy Act in so far as it has been preserved by section 129 of the T.P. Act. Jabed Ali Vs. Aba Sheikh, being dead his heirs Md. Naimuddin and others, 3BLD (AD) 1 Section—129 Section 2(6) and 3(3)— Complete usufructuary mortgage means of transfer by a tenant of the right of possession in any land for the advanced or to be advanced by way of loan upon the condition that the loan with all interests thereon shall be deemed to be extinguished by the profits arising from the land during the period of Mortgage. Thereby all the raiyat were protected and relieved from all sqrts of mortgages except the "complete usufructuary mortgage". Budhi-mante Base vs Ajnachamn Biswas 17 BLC 674. Sections 44 and 47— Section 47 of the Transfer of Property Act applies when owners who hold estate as tenants in common transfer a part of the estate; the share of each co-owner is proportionately reduced equally. If the shares are unequal there is a greater reduction in the greater share, and a lesser reduction in the lesser share. Zafela Begum vs Atikulla 16 BLC (AD) 46. Section 52— The cause of action of the suits being all together different the principle of section 52 of the Transfer of Property Act has no manner of application inasmuch as in the earlier suits right to immovable property was not directly and specifically in question whereas in the present suit right to immovable property is directly and specifically in question. Mohiuddin Khan vs Shihamul Haque 15 BLC (AD) 129. Section 53A— The dispute can be summarized as in specific performance of contract the genuineness of the contract is the foremost consideration but under 53A of Transfer of property Act the Court is to find title of the parties. Sultan Miah vs Roksana Begum 16 BLC 542. Section 52— The suit of the plaintiffs is hit by section 52 of the Transfer of Property Act as they purchased the alleged suit land during the pendency of the proceedings and the decisions upon the predecessors of the plaintiffs are binding upon the plaintiff. Against such order no suit lies except on the grounds of fraud and collusion but no suit was filed by the predecessor of the plaintiffs. The plaintiffs having no title and possession in the suit land have no locus standi to bring the suit against the order or the proceedings in which they were not parties. Abdul Aziz vs Kabir Ahmed Patwary 13 BLC 208. Section 53A— The petitioners have been in continuous possession of the case property on the basis of the agreement for sale dated 27-12-1970 and, as such, they have the protection of the provisions of section 53A of the Transfer of Property Act. Mahmuda Begum vs Chairman, First Court of Settlement 13 BLC 247. Section 53— The defendants-respondents obtained the ex parte decree in Title Suit No. 329 of 1974 suppressing summons collusively and practising fraud upon the Court. Again, the defendants-respondents manufacturing some false and concocted amalnama dhakhi-las and khatians tried to validate the evil design of grabbing huge quantum of the forest khas land practising fraud upon the Court and their evil design has been revealed in the appeal. The essence of law being to advance the cause of justice and not to frustrate it. If fraud is allowed to be perpe¬trated and perpetuated the sanctity attached to law will wither away with disastrous consequences to the society. The case of the defendants-respondents is the glaring example of committing fraud upon the Court which cannot be encouraged. Bangladesh vs Serajul Haque 11 BLC 714. Section 53A— The signature given by the defendant No.l, Inge Flatz, in the lease deed and her signature in the power of attorney clearly appear to be same by the naked eye. RAJUK also accepted this power of attorney through a letter dated 20-7-1989 marked Exhibit 7 permitting Mohsin Darbar to do all acts on the basis of the power of attorney. Thus, it is clear that the power of attorney was actually given by Mrs Inge Flatz to Mohsin Darbar empowering the latter to sell the suit property and being empowered, her constituted attorney executed the deed of agreement for the sale of the suit property in favour of the plaintiff. The deed of agreement for sale is genuine and on the basis of this agreement, the plaintiff made part payment and got possession of the suit property. M Manzur Ahmed vs Inge Flatz 11 BLC 280. Section 53— Had the transactions been the product of fraud, coercion or undue influence or had the transactions been not the product of Rativan's free will and that had the Heba-bil-ewaz deeds been not executed and registered by her without understanding the nature of the transaction and of being unaware of the contents of the documents, Rativan Bibi would, in the normal course of conduct and behaviour, have taken exception to both the transactions instead of that she is taking exception only in respect of one transaction i.e. the transaction which was made in favour of the defendant, and this shows lack of bonafide on her part and that she being influenced by some other interested persons, as contended by the defendant by the sons of Amzad, one of the sons of Rativan Bibi, instituted the suit. Mustafizur Rahman vs Md Amjad Hossain 11 BLC (AD) 195. Section 53A— In the instant case, it has been clearly proved that Mrs Inge Flatz empowered Mohsin Darbar by virtue of a power of attorney to sell the suit property and Mohsin Darbar accordingly executed the agreement for sale in respect of the suit property and made part payment of consi¬deration money and delivered possession of the suit property and thus, the part performance of agreement has been proved. M Manzur Ahmed vs Inge Flatz 11 BLC 280. Section 54— Section 54 of Transfer of Property Act can be pressed into service in this regard which enjoins that a contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between parties and it does not, of itself, create any interest in or charge on such property. Anwarul Huq could not become owner of suit shop/premises on the strength of alleged agreement for sale entered between him and Abu Md Shah Newaz and there could not be any legal justification to pay rent to Anwarul Huq and payment of rent to Anwarul Huq by defendant-opposite-party as owner of suit shop/premises is no payment of rent in eye of law. Amina Begum BA B.Ed vs Mdjobayer Alam Barker 14 BLC 339. Section 58(C)— Section 95A of the SAT Act it is clear that the transfer deed executed on 23-3-1967 is a mortgage deed. Though it is found that Section 58(C) of the TP Act does not mention the same but ultimately Section 95A clearly provides that mortgage is applicable in all the holdings including house or building or any portion or share. Abdur Razzak Khandker vs Maleka Khatun 17 BLC 593. Section 58(f)— Section 58(f) of the Transfer for Property Act was amended with effect from 26 March, 1971 by the Bangladesh Law (Revision and Declaration Act, 1973 and in section 58(f), the towns of Dhaka, Nara-yanganj and Chittagong have been added. The position stands now is that the provision for equitable mortgage by depositing title deeds had been made applicable at Dhaka and Narayanganj with effect from March, 1971 and before that date there was no provision of equitable mortgage by deposit of title deeds. The transaction between the plaintiff and the defendant No.l was entered in 1968, when there was no provision for creating equitable mortgage of lands in Dhaka district. On looking at this provision, Mr Rahim finds it difficult to seek a decree in respect of prayer 'Ga' to the plaint. Agrani Bank Ltd vs Habib Oil Mills (Bangladesh) Ltd 15 BLC 607. Section 106— The learned Judges of the High Court Division made the Rule absolute on discussion and proper consideration of the facts and law involved in the case holding that a registered deed of lease of immovable property for 99 years could only be deter¬mined by service of a notice under section 106 of the Transfer of Property Act, 1882 and such a lease deed cannot be cancelled in part and that partial cancellation of the lease deed by the respondent No.7 for non-construction of any building in the portion of the petitioner's land is not justified and warranted either by the lease deed or by law. Dr MA Yahia vs Md Abdul Quader 14 BLC (AD) 109. Section 106— The petitioner himself made agreement with respondent No. 4, not with the Upazila Parishad (Annexure-E to the writ petition) and the provisions of section 106 of the Transfer of Property Act are not applicable in the instant case. Jitendra Nath Bhadra vs Bangladesh 14 BLC 210. Section 106— Defendant-opposite-party in spite of clear knowledge of deed of exchange, and, also, of getting of suit shop/ premises in saham of Abu Md Shah Newaz and, also, of the deed of conveyance executed and registered on 26-11-2000 by Abu Md Shah Newaz in favour of plaintiffs-petitioners and, also, in spite of receipt of Attornment Notice, Exhibit 11 and Notice under section 106 of Transfer of Property Act did neither attorn nor admit plaintiffs-petitioners as owner and landlord of suit shop-premises and did not pay rent to them and, thus, became habitual defaulter rendering him liable to be evicted from suit shop/premises. Amina Begum BA B.Ed vs Md Jobayer Alam Barker 14 BLC 339. Section 106— In this case there was due service of notice under section 106 of the Transfer of Property Act inasmuch as in the present case it appears from the materials on record on several occasions the notice under section 106 of the Transfer of Property Act was posted in the address of the suit-shop to the defendant-opposite-party but all the times the same was returned as undelivered. Khandaker Mahmud Hasan vs Amirul Islam 14 BLC 360. Section 107— Both the court below totally misread and misconstrue the patta Exhibit 14 and failed to consider that the patta is not original one but a certified copy and it was not produced from proper custody as such, it has got no evidentiary value in the eye of law. The patta in question has wrongly accepted as evidence without any proof of its execution. Gour Chandra Mohanto Babu vs Md Abu Bakar Siddique 17 BLC 495. Section 107— The rule of law is that the landlord or his authorised agent has to come to the Court to prove the 7 exhibited rent receipts, of the plaintiffs when PW 1 has admitted that there is no patta or registered deed in support of plaintiffs' predecessor's settlement, he was not present at the time of settlement nor has he any knowledge of such settlement. PW 2 has admitted in his deposition that at the time of writing dakhi-las he was not present and such dakhilas were written by Salam and Avinish, the Tahashilders under original landlord. There is no document to prove that Salam and Avinish were the Tahashilders under the original landlord and the rent receipts have neither been proved by the landlord nor the rent receipts were proved by his authorised agent. PW 2 has not deposed that he was present at the time of writing of these rent receipts nor did he depose that he knows the signatures of Salam and Avinish. Moreso, the solitary evidence of PW 2 without any corroborative evidence cannot be relied upon. Thus, the factum of alleged lease has not been proved in any way. Further, the appearance of these rent receipts seem to be fraudulent and spurious. Hence, the plaintiff's alleged vendor, defendant No. 31, Khaled Solaiman, has or had no right, title and interest in the suit land. So, title and interest in respect of the suit land does not pass to the plaintiffs by virtue of transfer deed dated 27-5-1977. Rezaul Karim vs Montana Md Hanm-nr-Rashid 12 BLC 705. Section 108(C)— The court below misread and non-considered the plaintiffs' witnesses, specially PW 2 and 3. It further appears that Clause-O of section 108 of the Transfer of Property Act was not complied with and the tenant defendant acted contrary to it and changed the leasehold property from showroom to a factory. The property cannot be used for a different purpose from the one contemplated under the lease agreement. Afzalul Haque (Md) vs Md Abdur Razzacjue 13 BLC 185. Section 108(B)(j)— From the conditions of the lease and pursuant to section 108 (B)(j) of the Act, it is obvious that the lessor is entitled to get back the property after expiry of 50 years tenure of the lease period. In the event of the property be transferred or mortgaged or retransferred during the tenure of the lease deed, the transferee or the mortgagee or anybody can only get interest given for or during the valid period of lease and such interests is subject to any liability attached to the lease deed. MM Badshah Shirazi vs Judge, Artha Rin Adalat 17 BLC 226. Section 118— The defendant claimed the suit property solely on the basis of Salishnama but in pursuance of the so-called Salishnama, as a matter of fact, no deed of exchange was executed. The plaintiff in his evidence emphatically denied that plaintiff Nos. 1 and 2 did not put their signatures in the so-called salishnama. It is a fictitious paper created by the defendants only to grab the property. The learned Courts below without applying their judicial mind and without considering the legal bearing of the so-called Salishnama came to a wrong and erroneous finding in dismissing the suit of the plaintiff which is liable to be interfered by this Court. Abdul Jalil Miah vs Siddiqur Rahman 14 BLC 651. Sections 122 and 123— It is seen from the evidence on record that the PWs except making general statement that Mohendra Kumar Nath did not execute the deed of gift and that the evidence of PWs being negative in nature relating to the execution and registration of the deed of gift by Mohendra Kumar Nath, the High Court Division was not in error in setting-aside the judgment of the lower appellate Court affirming the judgment of the trial Court. Shushil Chandra Nath vs Shanjib Kanti Nath 12 BLC (AD) 131. Section 123— It appears that the plaintiff is claiming the property on the basis of gift made by his father. The plaintiff claims that he resides separately from his father maintaining his family independently. Admittedly, the deed itself is unregistered and according to section 123 of Transfer of Property Act, a gift may be effected by registered document and in the absence of registration the gift is not valid. Birendra Kishore Ghose & Gopal Krishna Ghosh vs Bangladesh 12 BLC 718. Section 123— The High Court Division has rightly found that the suit is maintainable in its present form also found that the suit property was a part of joint property of the Hindu joint family which has correctly came to the hand of Govinda Banik through amicable settlement and that ejmali property situated in any part of the world may be brought in the hotch-pots of the suit according to Section 2 of the Partition Act, 1898. Provas Chandra Banik vs Naresh Chandra Banik 16 BLC (AD) 62. Section 123— In this particular case, unregistered gift was made in favour of the plaintiff during the period of 1375 BS corresponding to February, 68 and it is void according to Article 5A of the Bangladesh Land Holding (Limitation) Order, 1972. It is admitted that the father of the plaintiff was holding land in excess of 100 bighas and to avoid such seizure of the property or to retain the excess land made such gift which is Exhibit 1 and that is not a valid gift in the eye of law. Therefore, the gift is made in favour of the plaintiff just to avoid section 5A of the Order 1972. The deposition made by the witnesses did not specifically state that the plaintiff is living separately. The PW 5, the mother-in-law of the plaintiff demanded separate property as he is a handicapped person but the plaintiff is not found in possession the gifted property while the marriage took place in the house of Dinesh Chandra. The statement made by PW 3 Md Mozammel Hoque, that Exhibit 1, the deed, was written by Naresh Chandra Sarker. Naresh was present at the marriage and it took place in the house of Dinesh. The possession was not effected on that date as the plaintiff has not accepted the gifted property and not found in possession. Marriage was held in the house of Dinesh, the possession was not handed over on the same date, the gift therefore is not acted upon. The report which is Exhibit A was proved by PW 4 Shahjahan Ali reflects that the plaintiff is not living separately rather living with his father. Further, it appears that the property has been seized and possession was taken up and it has been included in Khatian No. 1. PW 4 in his cross-examination, stated that from the office record it is seen that possession of the suit land was taken over by the Government. The CO (Rev) forfeited the suit land vide order No. 6 dated 28-3-79. The decision cited by the learned Advocate for the appellant that the deed even if not registered that can be cured on registration by the represen¬tative. But law says that it must be registered as per section 123 of the Transfer of Property Act signed by the donor and attested by witnesses. Therefore, the deed of gift does not stand at all and even if that gift as accepted that has been done after promulgation of Article 5A of the Bangladesh Land Holding (Limitation) Order, 1972. Under such circumstances there is no merit in the appeal. Birendra Kishore Ghose & Gopal Krishna Ghosh vs Bangladesh 12 BLC 718. Sections 3 & 130— Having considered the definition of 'debt' and the decided cases where ornaments were lying with the Bank could be considered as 'debt', and as such the ornaments lying with the Bangladesh Bank being recovered from Ms H Dey Jewelers are a 'debt' which could be claimed by its owners. Aloke Nath Dey vs Government of Bangladesh represented by the Deputy Commissioner 56 DLR (AD) 66. Section 3(g)— Before cancellation of the lease deed it was required of the Government to send a show cause notice to the petitioner to his changed address. Rahmania Agencies Ltd vs Bangladesh 42 DLR 363. Sections 6, 10, 11 & 40— Right of repurchase is not transferable. Ekrarnama is not a deed of conveyance—It is at best an agreement between the vendor and the vendee and by itself it does not create any interest in land. The restriction created in ekramama is quite valid. Unless the interest created by any transfer is absolute, section 11 Transfer of Property Act shall have no application. Asim Ali vs Badaruddin 46 DLR 96. Section 14— Though the petitioner's covenant was not personal and it could be enforced by the heirs, it is hit by the rule against perpetuity inasmuch as no specific time was mentioned within which repayment of consideration was to be made. Chandra Kanta Mistri vs. Sailendra Nath Sikder 49 DLR 514. Section 41— Purchaser from a benamder is protected under section 41 of the Transfer of Property Act provided he satisfies the conditions laid down in the proviso to the said section—The real owner can avoid the transfer by his benamder provided no reasonable care was taken by the transferee. Sultan Ahmed vs Waziullah 39 DLR 329. Section 41— The section is an exception to the ordinary rule that the transferor cannot convey a greater title to the transferee than he himself has. If anyone seeks protection either under section 41 of the Transfer of Property Act or under section 115 of the Evidence Act, he must prove the facts entitling him to the benefits under either of the laws. Wahida Begum vs Tajul Islam 52 DLR 491. Section 43— Where a person having partial interest in certain property, transfers a larger interest and subsequently acquired that interest, in that case the provision of section 43 of the Act applies and the transferee is entitled to get interest so acquired. Omar Ali Sheikh vs Shamsul Alam Mridha and others 55 DLR 257. Section 48— Title in land—Whether subse¬quent purchaser in possession from a date prior to the date of purchase of the prior purchaser in part performance of agreement for sale will acquire title. Since earlier kabalas take precedence over the subsequent kabalas the plaintiffs have not acquired any right, title and interest in the suit land on the basis of their subsequent sale deeds in respect of properties already sold to the defendant Nos. 1 and 2 by the same vendors. There is no provision of law that title on the basis of subsequent sale deeds will take effect from the date of agreement .for sale if possession is delivered in part performance of the agreement. Abdus Samad Khan vs Wazed Ali Fakir 44 DLR 495. Section 48— Bonafide purchaser for value without notice—The doctrine of bonafide purchaser for value without notice is applicable in a case when the plaintiff wants to enforce the agreement for sale not only against the vendor but also against the transferee of the vendor's title arising subsequent to the plaintiffs agreement for sale. Plaintiffs suit is not such a suit but is a suit for simple declaration of title in the suit land and, as such, the said doctrine is not applicable in the present case. Court is to decide the case on the basis of the pleadings of the parties and evidence on record and not• on the basis of its own assumption making out a third case. Abdus Samad Khan vs Wazed Ali Fakir 44 DLR 495. Section 52— Doctrine of lis pendens envisaged under 52 TP Act not applicable to pre-emption matter, since with the reconveyance of the land in pre-emption proceeding to the original owner the lis pendens doctrine loses its relevancy. Md Abbas Ali vs Md Osman Ali 37 DLR 324. Section 52— Since the petitioners purchased the properties during the pendency of the suit they will be subjected to the result of the suit. Mokthar Masum Abedin and others vs Nironjan Kumar Mondol and others 50 DLR 341. Section 53A— Respondent No. l claimed to pre-empt the sale on the ground that he became a co-sharer by virtue of a decree which he obtained in his suit for specific performance of contract. Held : As he did not obtain a kabala in pursuance ofa decree, his claim as a co-sharer is without any basis. Maleka Khatun vs Abid Ali 39 DLR (AD) 234. Section 52— Lis pendens—Mutation procee¬ding was initiated after the filing of the pre-emption application hit by the doctrine of lis pendens. M Banik vs Nitya Ranjan 39 DLR (AD) 75. Section 52— Lis pendens—Question of bar of appeal— The doctrine of Lis pendens does not make alienations made during pendency of a suit void but only that such alienation will not affect the rights of other parties to the suit. It means that the purchaser pendente lite is bound by the result of the litigation. In the instant case, the petitioner having alleged that he had purchased the suit land and the decree passed in the suit adversely affected his interest the District Judge has committed an error of law in not according permission to the petitioner to file the appeal. Bangladesh Leaf Tobacco Company Ltd. vs Md Abdul Mannan 43 DLR 7. Section 52— Lis pendens does not make a deed invalid, it only makes the right dependent on result of the suit. Anil Ranjan Ghosh and another vs. Assistant Custodian of Vested and Non¬-Resident Property and Additional Deputy Commissioner (Revenue) 49 DLR 296. Section 52— Suit for declaration of ex parte decree fraudulent—Scope of such a suit—Cause of action to file and maintain such suit—falsity of claim cannot be a ground for setting aside an ex parte decree. Only when the plaintiff challenges an ex parte decree on the . ground of fraudulent suppression of summons to deprive him of the opportunity of contesting the false claim in such a suit and the plaintiff can establish such allegation then such an ex parte decree can be set aside as fraudulent. The plaintiff having purchased the suit property during the pendency of the suit which was decreed ex parte the impugned decree is binding on him. They have no cause of action for the suit. Haji Md. Jshaque and others vs Rupali Bank 43 DLR 621. Section 53A— The learned Subordinate Judge, though mentioned about the agreement for purchase of the suit property, did not consider that the petitioner in part performance of the contract paid part of the consideration and obtained possession of the suit property. Dr Shakawat Hossain vs Bangladesh 42 DLR 215. Section 53A— The Transfer of Property Act has no manner of application in a case under the Succession Act. In every case it must be shown that the caveator, but for the Will, would be entitled to a right of which that Will would deprive him. Shubra Nandi Majumder vs Begum Mahmuda Khatoon 42 DLR (AD) 133. Section 53A— The defendant being in possession of the suit land in furtherance of bainapatra is protected by the provision of section 47 of the Registration Act. Mir Abdul Ali vs Md Rafiqul Islam 40 DLR (AD) 75. Section 53A— Part performance—When a transferor has delivered possession of his property to the transferee in part performance of a written contract neither the transferor nor any one claiming under him will be permitted to assert his title to the property in question or to recover possession of the same so long the transferee or the person claiming under him has done some act in furtherance of the contract and has performed or is ready to perform his part of the contract. Progati Industries Ltd. vs Shahida Khatun 43 DLR429. Section 53A— Section 53A— Once the defendant obtained a sale-deed and continued in possession not on the strength of his bainapatra but on the strength of his sale-deed section 53A ran its full course and exhausted itself. Rafiqul Islam (Md) vs Mir Abdul Ali 44 DLR (AD) 176. Section 53A— Tenancy right—Whether it is protectable by the doctrine of part performance¬—The contention that a tenancy being merely a transfer of a "partial right in property" it could not be said to be a transfer of property within the meaning of section 53A TP Act was rejected. Though the right is only to enjoy the property still it is a right and the tenancy is a transfer of immovable property within the meaning of the said doctrine. Pradhip Das alias Shambhu & others vs Kazal Das Sarma 44 DLR (AD) 1. Section 53A— The respondent being in possession of the property on the basis of agreement for sale has the protection of the provision of section 53(A) of the Transfer of Property Act. Bangladesh and others vs Kazi Ashrafuddin Ahmed 55 DLR (AD) 16 Section 55(1)(a)— Sale of land—Prayer for getting back consideration money on the plea of absence of sellers' title when cannot be allowed¬—The facts of the case disclose that the plaintiff purchased the property with open eyes having opportunity to know of the title of the defendant and the plaintiff having obtained delivery of possession was still in possession in respect of the whole property. His apprehension that 3l4 portion of the land will be taken over by the vested property authority is too vague and remote to give rise to any cause of action for the suit as framed. Narayan Chandra Banerjee vs Md. Salek Ali Shaik 44 DLR 202. Section 58— Mortgage, mortgagor, mortgagee, mortgage—money and mortgage—deed as defined in section 58 of TP Act, 1882. HBFC vs A Mannan 41 DLR (AD) 143. Section 58— Mere inadequacy of consideration is no ground to treat a document to be a mortgage. Somedullah vs Mahmud Ali 44 DLR (AD) 83. Section 105— The relationship between the lessor and lessee is a jural relationship, cautiously guarded by section 105 TP Act. National Engineers Ltd. vs Ministry of Defence 44 DLR (AD) 179. Section 105— A tenancy can also be created by oral agreement. The fact that no one actually saw payment ofrent does not detract from the fact that the appellant was described by PWs as a tenant under the respondent. Narayan Chandra Rajak Das vs Md. Amjad Ali Miah & others 44 DLR (AD) 228. Section 105— Heritability of a monthly tenancy—Maintainability of execution proceeding against the heirs of a deceased tenant —A monthly tenancy being a lease is an interest in an immovable property and a transfer of interest in the property—an incidence of heritability is easily discernible from the tenancy created either under a statute or a contract. Right in such a tenancy is ordinarily heritable, though this right is limited "to enjoy" and occupy the property only and the tenant is liable to be ejected. Pradhip Das alias Shambhu & others vs Kazal Das Sarma & others 44 DLR (AD) 1. Section 105— BFDC is a lessee under the government in respect of the disputed stalls to run a fair price fish selling centre there and in pursuance thereof they appointed the petitioner as a commission agent to sell such• fish at those stalls. The Court is justified in holding that the petitioner is a licensee under the BFDC who has the legal authority to revoke such licence. Habibur Rahman (Md) vs Government of Bangladesh and ors 51 DLR (AD) 39. Section 105— The trial Court has not committed any illegality in declaring that the plaintiff was entitled to inherit the leasehold right in the shop as it is now well settled that monthly tenancy is heritable. Islamic Foundation Bangaldesh vs Firoz Alam and others 51 DLR 141. Section 105— Since a co-sharer of a vested property has a preferential claim to lease than the stranger, in the instant case, the petitioner having claimed right and title in the case land and being admittedly in possession, there is no illegality in the impugned judgment. Government of Bangladesh and others vs Nidhi Ram Moni and others 54 DLR (AD) 14. Sections 105 & 106— Lease is created under section 105 and as such statutory notice must be given under section 106 for termination of tenancy; else no suit for ejectment of a tenant can be filed. A notice under section 106 of the Transfer of Property Act is mandatory in all cases of eviction under the Ordinance as well, because a tenancy is created under the Transfer of Property Act and Contract Act and those two Acts are not entirely excluded by the provisions of the Ordinance. The Ordinance has not excluded the operation of section 106 of the Transfer of Property Act either expressly or by implication. That is the basic reason why a notice under section I 06 of the Transfer of Property Act is mandatory in a case of eviction under the Ordinance. Abdul Aziz vs Abdul Mazid 46 DLR (AD) 121. Sections 105, 106, & 111— Lease, creation of—Its duration—Lease is a right only of occupation of an immovable property for a certain time. Transfer from one person to another creates this right. A lease whatever may be its purpose or duration, year to year or month to month, is created only under section 105. This section does not say that a lease for an agricultural purpose or manufacturing purpose shall always be a lease from year to year, or a lease for any other purpose shall always be a lease from month to month. Section 111 shows different ways and grounds for determination of a lease—death of the lessee has not been mentioned as a ground for its determination. In the decision of this Court reported in 32 DLR (AD) 171 a distinction was made between a lease under section 105 and a lease under section 106 whereas these two sections do not appear to say so. Pradhip Das alias Shambhu and others vs Kazal Das Sarma & others 44 DLR (AD) 1. Sections 105, 106 & 111— Lease, creation of—Its duration—lease is a right only of occupation of an immovable property for a certain time. This right is created by transfer from one person to another. A lease whatever may be its purpose or duration, year to year or month to month, is created only under section 105. This section does not say that a lease for an agricultural purpose or manufacturing purpose shall always be a lease from year to year, or a lease for any other purpose shall always be a lease from month to month. Section 111 shows different ways and grounds for determination of a lease—sdeath of the lessee has not been mentioned as a ground for its determination. In the decision of this Court reported in 32 DLR (AD) 171 a distinction was made between a lease under section I 05 and a lease under section I 06 whereas these two sections do not appear to say so. Pradhip Das alias Shambhu and others vs Kazal Das Sarma & others 44 DLR (AD) 1. Sections 105k &106— Where a lease is lawfully determined under section I 06 or otherwise for breach of any express condition entitling the lessor to re—enter, the lessee then could only be evicted by a suit after service of a notice under section 114A of the Act. Not otherwise. Sultan Mahmud Chy vs Ministry of Public Works and Urban Development and ors 56 DLR 269. Section 106— Observations that the notice under I 06 of TP Act having not been served by PW I, the landlord, was bad in law, are beyond the pleading and amount to making out a new case for the defendant. Kutubuddin Ahmed vs Hasna Banu and another 40 DLR (AD) 272. Section 106— A benamdar is a trustee for the beneficial owner. A suit for eviction at the instance of the owner's wife and son in whose name the Kabalas stand is maintainable. Kutubuddin Ahmed vs Hasna Banu and another 40 DLR (AD) 272. Section 106— A benamdar represents the real owner. A proceeding by or against the benamdar, although the beneficial owner is no party to it, is fully binding on the beneficial owner. Kutubuddin Ahmed vs Hasna Banu and another 40 DLR (AD) 272. Section 106— There was no oral or written contract whatsoever between the parties that the defendant is entitled to pay arrears rents in lump as and when its suits him. In the absence of such contract he has to pay rent for the previous month by the 15th of the following month. As the defendant has not done so he is a defaulter in the payment of rent on a number of occasions. MM Zaman vs Mrs Sakina Ahmed 38 DLR 313. Section 106— When the tenancy itself was terminated, a sub-lease created by the tenant cannot be said to have subsisted. It appears that the High Court Division omitted to consider that when defendant No. 1 was admittedly a tenant of the appellants predecessor Abdul Aziz Bepari who inducted defendant No. 2 into the suit premises without the consent and knowledge of the latter such transaction was of the nature of sub—lease, though not binding upon the landlord who was unaware of it. No question of giving consent to the sub—lease could, therefore, ever arise. Moreover, when the tenancy itself which was created in favour of defendant No. I by the appellants; predecessor was terminated, a sub¬lease in favour of defendant No. 2 by the tenant cannot be said to have subsisted. A sub—lease can be said to be trespasser in the circumstances of the case. Technicalities of law may sometimes prove to be of great value in winning even a bad case, but the defendant cannot hope to win on such technicalities alone. Tajabunnessa vs Nazma Begum 40 DLR (AD)36. Section 106— Notice signed and issued by one of the landlords on behalf of himself and others terminating the lease is a valid notice in terms of section 106. Dr. Sultan Ahmed vs AKM Fazlur Rahman 44 DLR 281. Section 106— A 'liberal consideration should be given to a notice under section 106 of the Transfer of Property Act and minor inaccuracy or omission will not invalidate the service of such notice. MG Jilani vs Md Waheduddin Sardar 44 DLR 348. Section 106— Reagitating a point—When leave was granted with the tacit admission that the notice under section 106 of the TP Act was defective the Court cannot in fairness embark upon a fresh inquiry into the validity of such notice. The landlord-appellants having abandoned that point, they cannot be allowed to reagitate the same in the absence of the respondent. Zahura Khatun vs Rokeya Khatun 43 DLR (AD) 98. Section 106— A sub-tenant has no right to stay in the suit premises and no notice to quit is necessary. Commander (Rtd) AA Chowdhury vs. AKM Imam Hossain and others 49 DLR 23 . Section 106— In the absence of any agreement between the landlord and the tenant a 15 days' notice determining the tenancy is required. But if the tenant denies title of the landlord in the suit premises, the necessity of serving any notice upon him is waived. Even if there is an agreement for 30 days' notice for terminating tenancy and the notice served falls short of 30 days, but the suit for ejectment is filed after one month, the notice will be regarded as a valid one. Solaiman (Md) vs. Sufia Akhtar Alam 49 DLR 288. Section 106— When a tenant denies the title of the landlord in the demised premises without any valid reason it operates as a forfeiture of his tenancy right and in such a case a notice under section 106 of the TP Act may be dispensed with. Solaiman (Md) vs Sufia Akhtar Alam being dead, her heirs Narjesa Rahamatullah & others 50 DLR (AD) 90. Section 106— The tenancy in question was according to Bengali Calendar month but the notice that has been given has no reference to the Bengali Calendar. The notice served upon the defendant cannot therefore be regarded as a notice for expiry of the tenancy with the end of a month. Kamruzzaman Khan vs Shahidul Alam Khan and others 51DLR393. Section 106— Without serving any notice under section 106 of the Act no tenant can be evicted. Abdur Noor and others vs Mahmood Ali and others 54 DLR (.4D) 67. Section 106— Allowing more than one month's notice to determine the tenancy has not contravened any of the provisions of the Transfer of Property Act or the Premises Rent Control Ordinance. Santosh Kumar Das vs Hajee Badiur Rahman 54 DLR (AD) 93. Section 106— Since the agreement in question is not a registered one it must be held to be a tenancy for month to month. Loretto vs Nasreen Sobhan and another 55 DLR 581. Sections 106 and 116— Holding over—¬Whether the terms and conditions of the old agreement would continue to guide the relationship between the landlord and tenant. Dr Suraiya Hossain vs Taherunnesa 41 DLR 441. Section 106— The contention that once the defendant was inducted in the disputed land with permission to raise construction, he is no more liable to be evicted therefrom, is totally an unacceptable proposition. Azim vs Nairn Ara Begum 56 DLR 158; Section 107— Unregistered lease deed of immovable property from year to year is inadmissible in evidence for lack of registration. Bangladesh vs Md Aslam 44 DLR 69. Section 109— Attornment—contention that mere deposit of rent in the name of plaintiffs predecessor-in-interest did not ipso facto prove attornment by the defendant could not be considered as it is found that the question of attornment was not raised in the pleading or in the proceedings at any time. Shambh Nath Saha vs Alfazuddin Ahmed 41 DLR (AD) 27. Section 109— Attornment—Acts as estoppel to prevent the tenant attorning, from denying the title of the one to whom he attorned. Law does not require the service of any written notice upon the tenant for effecting attornment. It may be sufficient if the tenant is informed of the change of ownership even verbally. Solaiman (Md) vs. Sufia Akhtar Alam 49 DLR 288. Section 111— When there is lease by registered instrument coupled with delivery of possession there cannot be any cancellation of lease by implication. Sudangshu Jaladash and others vs Shahabuddin 52 DLR (AD) 119. Section 111(f)— Implied surrender— Surrender of an under tenancy right need not be in writing. It may be inferred from act and conduct of parties as well. Md Jashimuddin Kanchan vs Md Ali Ashraf 42 DLR (AD) 289. Section 111(g)— There is no provision of law in determining a tenancy on the ground of a tenant becoming "an undesirable tenant" unless the tenant comes within the mischief of forfeiture under section 111 (g) of the TP Act. Maria Keshi D'Rozario vs Hasan Moises Ltd 41 DLR (AD) 135. Section 111(g)— Determination of lease on the plea of breach of condition—When the Government failed to deliver the full area of the land as described in the lease deed it cannot be said that the petitioner violated the term of the lease deed. Before cancellation of the registered lease deed it was required to the Government to send a show cause notice to the petitioner at his changed address. Rahmania Agencies Ltd vs Bangladesh 42 DLR 363. Section 111(g)— In a case of forfeiture of tenancy for denial of title, written notice of lessor's intention to: determine the lease is not compulsory as the cause of action is the denial of the landlord's title resulting in determination of the tenancy. Ishaque (Md) vs Ekramul Haque Chowdhury and others 54 DLR (AD) 26. Section 111(g) & 114A— Determining lease invoking the aid of stipulation in the lease deed—¬In the instant case the lease was determined on the breach of condition by the lessee as embodied in the lease deed and issuing notice on him invoking the aid of clause 5 of the lease deed and section 11 l(g) of the TP Act. Therefore, the principle laid down in AIR 1970 (Cal) 452 is not applicable in the present case. The grounds for non-compliance of the terms and conditions of the lease deed which resulted in the forfeiture of the lease did not appear reasonable because of the long lapse of time. Motiul Hoque vs DIT (RAJUK) 43 DLR 407. Section 111(g)(2)— The denial of the title of the plaintiff-landlord in the written statement will not be available as a ground for determination of tenancy by forfeiture. Sher Mohammad vs Saroda Bala Sen 45 DLR 527. Section 111(g)(l)— Forfeiture of tenancy—¬When the defendant tried to make out a case of adverse possession denying the plaintiff's title, the defendant forfeits his right of tenancy by renouncing his character as a tenant and by setting up title in a third person and thereafter claiming his own title. Haragram Trust Board vs Dr Golam Mortuza Hossain 47 DLR 160. Section 116—'Holding over' and 'continuing tenant as a statutory right'. The appellant is not 'holding over' within the meaning of section 116 of the Transfer of Property Act nor is .he a tenant by sufferance. Appellant is a tenant under section 2(8) of the PRC Ordinance—Appellant entitled to benefit of section 18(5) of the PRC Ordinance, subject to the fixation of rent and other conditions for a fresh tenancy. Maria Keshi D'Rozario vs Hosan Moises Ltd 41 DLR (AD) 135. Section 116— The renewal of the lease in case of holding over, as under section 116 of the Transfer of Property Act, does not mean a continuation of the terms and conditions of the old lease but a new lease where there is no meeting of minds as to the term and condition on which the lease is to be continued. It is a mere tolerance by the landlord as to the existence of a tenant in his house. Dr Suraiya Hossain vs Taherunnessa 41 DLR 441. Section 116— Holding-over—Tenants con¬tinuous possession with landlord's assent creates an implied contract constituting a tenancy by holding—over. Such a tenancy cannot be created by tenant's continuance of possession alone—there must also be the assent of the landlord, which may be expressed or implied. It may be evidenced by acceptance of rent or by other circumstances. Where the lessor dissents there cannot be any holding-over. Absence of dissent will not necessarily imply assent, but from the tenant's continuous possession for a long period, without contrary indication from the landlord may constitute an implied assent. Implied assent is a question of fact inferable from the length of possession and other circumstance excluding an inference of landlord's dissent. Siddik Ali vs Nurun Nessa Khatun 43 DLR (AD) 3. Section 116— When there has been no dissent either by the tenant or by the landlord on the expiry of the written agreement, the tenancy continued by holding over. Mokbul Hossain Khondker vs Jaheda Khatoon 47 DLR 430. Section 116— The tenant having continued in possession of the premises after expiry of lease agreement, he is bound to pay rent in terms thereof and not those under section 18(5) of the Ordinance. Parimal Ranjan Das vs Nasima Khatun 49 DLR 286. Section 118— When the vendors and transferees fail to prove execution and delivery of possession by any independent witness, the exchange must be held to be a hoax and not genuine transaction. Kamaluddin and others vs Md Abdul Aziz and others 56 DLR 485. Sections 118 & 119— Exchange—what it is—An exchange is a mutual transfer between two persons of the ownership of properties, but either both the things should be money or neither of them should be money. A party to the exchange when deprived of the thing received in exchange has his remedy under section 119. A third party too can raise the question of title of a party to the exchange. Sahera Khatun and another vs Anwara Khatun & others 44 DLR (AD) 86. Sections 119 & 118— Exchange—what it is—An exchange is a mutual transfer between two persons of the ownership of properties, but either both the things should be money or neither of them should be money, a party to the exchange when deprived of the thing received in exchange has his remedy under section 119. A third party too can raise the question of title of a party to the exchange. Sahera Khatun and another vs Anwara Khatun & others 44 DLR (AD) 86. Section 122— Gift—Actual delivery of possession when not essential—Even if it is accepted that no express delivery of possession was taken by the donee, the delivery of possession if be taken by her constructively the requirement of law is substantially met—then, relationship of the donor and the donee beingthat of husband and wife the possession of husband may be the possession of the wife. Abu Baker Sikder vs Mst. Monowara Begum 42 DLR 403. Section 123— Sections 123 & 129— Section 135A— Though the introduction of section 135A of the Act only has given right to the insurer after subrogation to sue on his own behalf but that has not taken away the right of the insured to file a suit for and on behalf of the insurer after getting compensation from the insurer. Dula Meah Cotton Spinning Mills Ltd, and another vs MV Mehedinta and others 47 DLR 551. Section 41— The ratio of judicial pronouncements is that for applicability of section 41 of the Act primarily two things must concur: (1) that the person, i.e. ostensible owner, who has no real title was clothed with the insignia of ownership with the consent, express or implied, of the real owner; and (2) that the person purchasing for value from the ostensible owner shall take reasonable care to -ascertain that his transferor has authority to make the transfer. At the time of making the purchase from Narayan Chakraborty plaintiffs were very much aware that their vendor's father was alive. The plaintiffs made their purchase without making reasonable inquiry to ascertain real ownership of the property transferrred by their vendor, nor did they take steps for ascertaining the correctness of the recital in the deeds in spite of being aware of the fact that real owner of the property was alive at the material time. Rabeya Khatun & others vs Moniruddin and others 8 BLC (AD) 121. Section 52— The pre-emption case was allowed on 27-6-1983 and the two deeds of re-conveyance were executed on 28-02-1983 and hence the trial Court has rightly found that the deed of re-conveyance is hit by doctrine of Us pendens under section 52 of the Transfer of Property Act. Jahangir Alam vs Sailish Chandra and ors 6 BLC 508. Section 52— In a pre-emption case when the case holding does not appear to be a mortgaged property or charged for mortgage sale, such holding, even, if sold in execution of any money decree in any money execution proceeding, any alienation by the judgment-debtor does not come within the purview of the doctrine of lis pendens in the absence of the proof of service of notice under Order XXI, rule 54 of the Code upon the alienor or the alienee as the case may be. Badiul Alam being dead his heir Fazhd Karim vs Md Nurul Islam 8 BLC 30. Section 52— The doctrine of lis pendens as in section 52 of the Transfer of Property Act is intended to maintain the status quo unaffected by the act of any party to the litigation pending its determination. If in spite of reconveyance to the original vendor subsequent to filing of the case seeking pre-emption, the pre¬emption is allowed, then the principle of lis pendens also will be applicable in the pre¬emption case. Ambiya Khatun and others vs Noor Ahmed and others 9 BLC (AD) 114. Section 52— The appellant Bazlur Rahman transferred the disputed land to appellant Bushra Complex Ltd when there was no civil suit pending and, as such, the High Court Division committed error of law in holding that the transfer took place during the pendency of suit and was hit by the doctrine of lis pendens. Bushra Complex Ltd and another vs Syeda Sabera Khatun & others 10 BLC (AD) 76. Section 52— It is well recognised that the effect of section 52 of Transfer of Property Act is not to 'wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree or the order passed in the proceeding. The pendente lite takes the property subject to the result of the suit or proceeding. It is to be noticed that the right under the decree or order is sought to be protected by the doctrine of Us pendens. But if the proceeding cannot yield any result creating any right in favour of a party to the proceeding, the question of applying the doctrine does not arise. Rajdhani Unnayan Kartripakhya (RAJUK) and others vs Md Lutfar Rahman and ors 10 BLC 580. Section 53A— On the promulgation of the President's Order No. 16 of 1972 the-property assumed the character of abandoned property and that as per provision of Article 10 of the President's Order No. 16 of 1972 the property vested in the government and that possession of the property in question though claimed by the respondent No. 1, but as was not established was with him on 28-2-1972 when PO No. 16 of 1972 came into force and that as no material has been brought on record whereupon it can be said that the possession claimed by the respondent No. 1 is of the kind of possession as contemplated by the provision of section 53A of theTransfer of Property Act, as such, possession of the respondent No. 1 of the property in question is not protected under section 53A of the Transfer of Property Act. Government of Bangladesh vs KM Zaker Hossain and others 8 BLC (AD) 27. Section 54— Trial Court approached erroneously the question of ownership of the suit property relying on some exhibits which never created title in defendant No. 4 company being absolutely oblivious of the mandatory provision of section 54 of the Transfer of Property Act and section 17(1)(B) of the Registration Act which rendered the impugned judgment and decree illegal as a whole. Government of Bangladesh & others vs Paper Converting & Packaging Ltd & others 6 BLC 467. Section 105— The period for which the suit was brought, namely, 1401-1402 BS has already expired and the plaintiff had no subsisting leasehold right in suit fishery at the material time. Moreso, defendants 1-6 cannot be made liable for any damage done to the plaintiff by a third party, namely, defendant No. 7. The lease period having expired the plaintiff cannot also get any declaration of title against anyone including the defendant No. 7. Bangladesh vs Abdul Alim Sarkar 6 BLC (AD) 38. Section 105— Learned trial Court failed to differentiate between an owner of an immovable property and a licensee on the basis of temporary use of the godown on the suit property and thereby, ignored and did not place any reliance on the Ext 'A' and 'C' which proves that the permission was given by the defendant No. 3 to the plaintiff to use the suit property for a very short period and the plaintiff is none but a mere licensee. Government of Bangladesh & others vs Paper Converting Packaging Ltd & others 6 BLC 467. Section 105— Without giving valid notice the lease-hold right cannot be cancelled— The Housing Estate Authority allotted the plot in question to respondent No. 1 for 99 years upon receipt of instalment of consideration money and accordingly, possession was delivered. Admittedly, the notice asking the respondent No. 1 for paying the 4th instalment and that in case of non-starting of construction, the allotment in question would be cancelled without further communication was sent to the address where knowingly the lessee does not reside. It further appears that the writ-petitioner-respondent No. 1's allotment of the plot was cancelled on 11-8-94 and on the same day it was allotted to respondent-appellant in the absence of any application from her side seeking allotment In such circumstances, the cancellation of the lease and the allotment of the plot in question to the appellant were malafide and the action of the Housing Estate Authority is without lawful 'authority as it was done without giving any notice to the allottee. Jahanara Ahmed vs Md Abdul Quyum and others 8 BLC (AD) 20. Section 106— It cannot be said that bonafide requirement of the premises by the plaintiff is a mere desire/wish since she has established her bonafide requirement by reliable evidence. Exception taking which the defendant tried to disprove the claim of the plaintiff as regards her bonafide requirement could not be established by evidence. Second plea of the defendant that in commercial area residential house cannot be constructed also does not stand to scrutiny in the background of the type of construction now-a-days as is being made both for commercial as well as for residential purposes in the locality where commercial activities are already in existence. It has also been established by the evidence on record, both oral and documentary, that the tenancy in question was terminated in accordance with law. Bulbul Begum vs Md Sanwar Belal and anr 8 BLC (AD) 97. Section 106— Upon Perusal of the Ext. 4-kha, a copy of the notice under section 106 of the Transfer of Property Act dated 24-7-1993, learned SSC Judge came to his finding that the tenant-petitioner himself received the copy of the notice by signing his name on the copy of the said notice on 1-8-1993 and on comparison with the signature of the tenant-petitioner "with other documents on record, he reached to his decision that the signature of the tenant-petitioner appearing in Ext 4-kha tallies with that of other documents on record and such finding of fact being based on evidence on record cannot be disturbed by the High Court Division in its revisional jurisdiction. Mohammad Islam vs Rahicha Khatoon 8 BLC 37. Section 106— No possession having been given, no vested right was created and the lessee Abul Hashem Khan could not legally claim one month's, calendar notice under the provision of the lease agreement. The High Court Division, therefore, erred in holding that one month's calendar notice was required to be served upon Abul Hashem Khan before determining lease. Bushra Complex Ltd and another vs Syeda Sabera Khatun WBLC (AD) 76. Sections 106 and 111— In the present case defendant No. 1 admittedly stopped paying rent since October, 1998. Since then he did not take any step to pay rent. So, the defendant became a defaulter and ultimately he was evicted through process of the Court on 16-8-2003. The arrears of rent piled up to Taka 13,16,360 from 1-10-1998 to 31-8-1999 before he was evicted. The decree so passed cannot be said to be invalid. The notice for eviction dated 12-7-1998 and subsequent correspondence between the parties were sufficient in establishing the intention of the parties to vacate the suit premises. After the expiry of the period of the tenure on 30-5-1997 the lease was determined. Weaver Bind Sweater International (Private) Ltd vs Md Abul Hashem Mia and ors 9 BLC 644. Section 109—Attornment— It is not necessary for the defendant to attorn to the plaintiff for establishing such relationship. Attornment by the tenant is not necessary to confer validity of the landlord's right under the subsisting tenancy. The tenancy continues and the default of the defendant in payment of rent makes her liable for eviction. Selina Begum vs Azizun Nessa 6 BLC (AD) 115. Sections 118 and 129— It appears that the appellate Court discarded the deed of exchange and the Heba-bil-ewaz executed in favour of the plaintiff by his father simply because those were not admitted into evidence in accordance with law but he arrived at such finding without considering that the executants of the said deeds never disputed the execution thereof rather the written statement and the evidence on record support such, execution and the said two documents were admitted into evidence in presence of the defendants without any objection. Aminul Hoque (Md) vs Sanat Kumar Dhar and others 9 BLC 322. Section 122— Sections 122 & 123— It is evident from the recital of Exhibit 2 that the essential ingredients of the gift or heba appears to be a complete one and it does not disclose any ingredients of lawful contract which can be placed to enforce through the Court of law. Defendant Nos. 1 to 7 cannot be also asked to convey the suit land as they cannot claim ownership to the property which had already been gifted by their predecessor. Registration is not necessary for a valid gift under the Mohammadan Law. It is crystal clear that the deceased had executed purely a deed of gift having no scope of calling it a deed of agreement or 'Ekrarnama'. Sajida Begum and others vs Abdul Kader and others 8 BLC 306. Section 123— The consistent view of the apex courts of this Sub-Continent is that not only a gift under Mohammadan Law but also under the Transfer of Property Act, a gift must be coupled with acceptance and delivery of possession of the property. Mere registration of such deed of gift is not at all sufficient, something more has to be done for making a valid gift which is lacking in the present case. Bangladesh, represented by the Secretary, Ministry of Housing and Public Works & another vs Anny Ansari 6 BLC (AD) 85. S. 2(c)—The doctrine of merger contained in section 111 of the Transfer of Property Act is subject to section 2(c) which makes it inapplicable to leases created before the Act came into force. Tajim Ali Vs. Saijuddin Khan (1954) 6 DLR 25. S. 3—”Actionable claim” includes existing debts payable in future or assignments of benefits under contracts for the supply of future goods. Kazi Abdul Ali Vs. Nurul Amin (1955) 7 DLR 406. —The words “conditional or contingent” mean that in case of debts or benefits accruing conditionally or contingently the immediate right to recover by action does not arise until the condition has been fulfilled or the contingency has occurred. Ibid. —The true test of determining the nature of the claim sought to be assigned should be to see that the claim when it does accrue partakes of the character of a debt or a beneficial interest in movable property not in the possession, either actual or constructive, of the claimant which can be recovered by an action. Ibid. —Beneficial interest in movable property—Right to claim the benefit of a contract. Right to claim the benefit of a contract for future delivery of goods sold is a beneficial interest in movable property’ within the definition of actionable claim and as such assignable. Ibid. —A entered into a contract with B to do certain works; he also entered into a contract with C under which C agrees to finance A in the execution of his contract works on condition that his advances would be a first charge on the bills due plus certain interest. Held: What A purported to assign was the right only to claim payment for works performed under the contract. This was not merely a right to sue for breach of contract but was an actionable claim. Ibid. —Attestation—Personal acknowledgement of signature: A personal acknowledgement of signature or mark as regards the execution of a deed by an executor within the meaning of the section may be either express or may even be inferred from conduct and it is sufficient if it is an acknowledgement of the execution of the deed. Hari Kissan Pandey Vs. Nageswari Debi (1956) 8 DLR 65. —Valid attestation: It is sufficient for valid attestation, if the attesting witnesses received acknowledgement from the executants of the deed that he put his signature or mark on the deed though the attesting witnesses themselves did not see him do it. Ibid. —Registration is notice when the document is compulsorily registrable. The doctrine of constructive notice by reason of registration applies only in the case of documents which are compulsorily registrable. Nagendra Chandra Vs. Purameswar Roy (1957) 9 DLR 476. Constructive notice —Notice of registration of sale deed is a constructive notice unless proof is given to show that there was no such notice. Ibid. —Whatever is notice enough to excite the attention of a man of ordinary prudence and called for further enquiry is, in equity, notice of all facts to the knowledge of which an enquiry suggested by such notice and prosecuted with due diligence would have led. Dula Mia Vs. Haji Md. Ibrahim (1956) 8 DLR 616. —Registration a constructive notice. Hochenaddi Sk. Vs. Esmail Sikdar (1957) 9 DLR 294. —A registered transfer amounts to a notice. Jamini Mosahar Vs. Md. Majibar Rahman (1953) 5 DLR 22. —The Transfer of Property Act not being in force in the region formerly known as the Punjab, the state of the law even after the 1927 amendment of section 3 remains the same, viz, that registration by itself does not amount to notice; the question of notice is one of fact to be determined on the circuinstances of each case. 1956 PLR (Lah) 1840. —Where licensee is permitted to erect permanent structure and thereafter allowed to continue to enjoy the same—License becomes irrevocable. A mud-wall hut is a permanent structure. Md. Ahsanullah Vs. Etwari Mia (1962) 14 DLR 776. —“A person is said to have notice”— When duty to make enquiry is imposed on purchaser of property having tenants on it. It was contended that if a tenant be in possession of land which is transferred it is the duty of the purchase& to make an enquiry from the tenant as to the nature and incidents of his title. Held: Immovable property in a town or an agricultural estate may have hundreds or even thousands of tenants on it. ft cannot be the duty of a person who purchases large property to make an inquiry from every one of the tenants of the property as to any agreements relating to the property which he may possess. A duty to make enquiry would arise only if there be some circumstance which puts the purchaser on enquiry. That tenants are in possession of the property which is purchased is not a fact which by itself will put the purchaser on enquiry, for this may be and will probably be the normal incident of the property purchased. Property may be in the possession of occupancy tenants, or it may consist of only the rent-receiving interest. Possession which is prima fade lawful does not call for an enquiry. If, however, a person was in possession without any apparent title, or if the explanation given about the title of such person by the vendor was unsatisfactory there would be good grounds for making further enquiry. The purchaser cannot be penalized unless he has somehow failed in his duty and his duty would not arise unless there is something in the circumstances which puts a person of ordinary prudence on enquiry. Abdur Razzak howlader Vs. Sk. Muhammad Shafi (1962) 14 DLR (SC) 119. —An interest created under an agreement for sale of an immovable property does not fall within the definition of “actionable claim.” “Actionable claim’ as defined in section. 3 of the Transfer of Property Act mean any claim to an unsecured debt or any beneficial interest in any movable property. Purchase of any interest in any actionable claim is prohibited under this section when the purchaser is a judge, lawyer or an officer of the Court. Ayaz Bahadur Vs. Abdus Sobhan (1978) 30 DLR 16. S. 6—Property of any kind may be transferred. A right to the reconveyance of immovable property, being ever so much more solid than a right of co-entry, should be treated as property. 1952 PLR (Lah.) 196. S. 6(a)—Transfer of expectancy Dispute relating to land between mother, stepmother and sister of last male owner on the one side and reversioner on the other—Parties not sure as to their respective shares—Compromise deed executed to avoid further litigation and to put an end to doubts—Deed, not invalid as transfer of expectancy. (1951) PLR (Lah.) 293. S. 35—Doctrine of election—The beneficiary must give effect to the instrument as a whole. The foundation of the doctrine of election is that a person taking benefit under an instrument must also bear the burden imposed by it and that he cannot take under and against the same instrument. It is, therefore, a breach of the general rule that no one may approbate or reprobate. The doctrine is based on intention to this extent that the law presumes that the author of an instrument intended to give effect to every part of it. Md. Kader Ali Vs. Lokman Hakim (1956)8DLR 112. S. 40—Sale by mortgagor of equity of redemption—Vendee covenanting to reconvey to vendor mortgagor partition of property after redemption—Vendor-mortgagor subsequently selling his right to reconvcyance also to vendee—Earlier sale successfully pre-empted—Pre-emptor selling his rights under the pre-emption decree to mortgagee— Covenant to recovery, though personal, held nevertheless, to be annexed co-ownership of land. 1952 PLR (Lah) 196. Ss. 40, 54 and 130—Even a benamder can maintain a suit for reconveyance in place of the principal. In some decisions it has been opined that by express or implied terms in the agreement between the parties this right may be limited within the family of the promisee. Therefore, in the present case in the absence of even such limitation in the agreement the right of rcconvcyancc was assignable and the same was rightly and validly assigned to the plaintiffs. As such the plaintiffs have locus standi to institute the Suit for specific performance of contract against the original vendee. Seru Mia. Vs. Fajilatennessa & ors. (1979) 31 DLR 159(160). —Right of reconveyance of immovable properly is an actionable claim in the vendor which can be transferred legally. Seru Mia Vs. Fajilatennessa & ors. (1979)31 DLR 159. —When section 130 of the Transfer of Property Act is read with sections 40 and 54 of that Act there remains no doubt that the right of reconveyance of immovable property though not an interest in the land, is an interest very much annexed to the ownership of the land; and this right is an actionable claim in the vendor which is transferable. Seru Mia Vs. Fajilatennessa & ors. (1979) 31 DLR 159. —A right under a contract of sale or contract of reconveyance, for all practical purposes, subject to the limitations put under sections 40 and 54 of the Transfer of Property Act, stands at par with “equitable estate” of the vendee under a contract of sale of immoveable property. This right though not an interest in the land, is very much annexed to the ownership of land and this ‘right’ is transferable, assignable. Seru Mia Vs. Fajilatennessa & ors. (1979) 31 DLR 159. S. 41—Transfer by ostensible owner. —The party relying on the section must establish facts which entitle him to the benefits of the rules laid down in the section. Nazir Ahmed Vs. Benoy Bhusan Saha (1956)8 DLR 159 (266 rt.h.col). —Real owner, when allows another to hold as the owner of an estate to recover from the purchaser of the pretended owner. Hamidulla Talukdar Vs. Muslim Khan (1956)8 DLR 606 (608 rt.h.col.) —Unless he cannot overthrow that the purchaser by showing either that he had directed notice or something which amounts to constructive notice of the real title, or that there existed circumstances which ought to have put him on an enquiry, which if unsecured would have led to a discovery of it, the real owner has no remedy against the purchaser. Habibullah Talukdar Vs. Muslim Khan (1956) 8 DLR 606 (608 rt.h.coi) —Transferee from the ostensible owner—When his interest protected. The husband continued to possess the suit land after settling it to his wife and subsequently the husband sold the same land to X. Section 41 of the Transfer of Property Act makes it incumbent on the transferee to act in good faith and to take reasonable care to ascertain that the transferor had power to make the transfer. It is obvious that the first step which the transferee is expected to take is to search the registration office to ascertain what transfers, if any, had been made by the transferor. The transferee is not entitled to the benefit of section 41 of the Transfer of Property Act if he or she fails to do so. Hassan Ali Vs. Azmauluddin (1962)14 DLR 392. Bonafide transferee—A bonafide purchaser for value without notice of the alleged contract for reconveyance is protected under. section 41 of the Transfer of Property Act. Tazal Haque Vs. Md. Affan (1965) 17 DLR 613. —Vendee—When may make enquiries—True owner’s possession—Vendee must enquire as to nature of possession— Protection under the section is lost by negligence. If there are no circumstances disclosing any reason for going behind the revenue entries, then the vendee is protected if he has bonafide acted on the entries appearing in the revenue records. The authorities do not seem to lay down any principle on the question of implied consent of the true owners; but it is clear that this would be a question to be decided on the facts of each case. It is also clear that the mere entry of the name of the ostensible owner in the revenue record would not by itself amount to implied consent on the part of the true owner, as required by section 41 of the Transfer of Property Act. Therefore, the fact that the true owners had all along been in possession of land was, a sufficiently strong circumstance for the vendees to be put on their guard and to require them to make further inquiries beyond the entries made in the revenue records. This they failed to do with the result that this requirement of section 41 was also not fulfilled by them. Ilahi Bakhsh Vs. Hassan Khan, PLD 1966 (W.P.) Lahore 654. (Anwarul Haq, J.) S.43—House by mistake transferred to M. when it was not in compensation pool—House subsequently included in pool—Transfer to M is validated by inclusion. The principle embodied in s.43 applies to transfer under Act XXVIII of 1958. When the property was put in earmarking due to a mistake in the record of the Deputy Rehabilitation Commissioner, the property did not form part of the compensation pool and by mistake it was transferred to M. Subsequently the property was released by the Central Government on 20.6.1960 and it became a part of the compensation pool. Thus the transfer already affected in favour of the petitioner became a valid transfer on the 20th of June 1960. Mumtaz Sultana Vs. Settlement & Rehab, Commissioner, PLD 1964 (W.P.) Lahore 388 (Rizvi, J). —Transferor having doubtful title at the time of transfer—Interest acquired subsequently passes to transferee— Principle of feeding the estoppel. Under s.43 a transfer by a person of property which he represents and which he is entitled to transfer, but in which his title is doubtful or lacking, will operate on any interest which he may acquire subsequent to the transfer in that property so that the transferee becomes the owner of that interest. Therefore, if at the time when the film was transferred by the transferor he did not have any rights in the film but the rights were acquired later on, they would pass to the transferee when they are so acquired. S.Sibtain Fazli Vs. Star Film Distributors PLD 1964 Suprem Court 337=1 6 DLR SC 198. (Kaikaus. J). Doctrine of feeding the grant by estoppel: The doctrine of feeding the grant by estoppel which appears as the solitary illustration to section 115 of the Evidence Act and in section 43 of the Transfer of Property Act is based on the ground that if a person, for value received, conveys what he does not own but subsequently he acquires the title, which he conveyed, then the transferee can enforce the conveyance against him. Ghulam Md. Shah Vs. Fateh Md. Shah (1955) 7 DLR (FC) 70. —Estoppel, application and doctrine of Section 115 of the Evidence Act is not the only section which deals with title by estoppel but there is one other section, namely, section 43 of the Transfer of Property Act which deals with the same thing. However, there is a distinguishing feature. According to section 43 of the Transfer of Property Act, erroneous representation is enough, but under section 115 of the Evidence Act it must be made intentionally and falsely. Where there is no proof of erroneous misrepresentation and the real state of things were known to both the parties, no question of estoppel arises. 6 PLR (Dac) 181. The section applies to case of fraudulent or erroneous representation made by transferor to transferee. 1951 PLR, (Lah) 307. —Transferor’s right to the property accruing to him subsequent to his date of transfer endures to the benefit of the transferee. Musammat Khaleda Razia Khan Vs. Mahtabuddin Chowdhury (1978) 30 DLR (SC) 27. —A nadabi-deed may be taken to be piece of evidence to strengthen the plaintiff’s claim of title on the principle of feeding the grant by estoppel. Ibid. —Feeding the estoppel—Ingredients of the principles of feeding the estoppel. What are required for application of the provision provided in s.43 regarding feeding the estoppel are (a) erroneous or fraudulent representation by a person, having had no title or having imperfect title to certain immovable property that be was authorized to transfer such property; (b) actual transfer of the said property by him for a consideration; Cc) subsequent acquisition of title or any interest by the said person in the said property. On the fulfillment of these conditions the transfer made by the unauthorized person would operate on the title or interest which has been acquired by the said person at the option of the transferee. Abu Saber Aziz Mahammad & ors. Vs. Govt. of Bangladesh & ors. (1979) 31 DLR (AD) 218. —It may he said to have been ultra vires of the Government Officer in the sense that the lands in question having been not the Government property, the Government officers were not authorized to transfer the same and no title accrued in favour of the plaintiffs on the basis of such transfer. But the Government having subsequently acquired title to the said transferred lands, there is no bar to the application of the law of feeding the estoppel. There is no statutory provision suspending the law of feeding the estoppel and creating a bar to the claim of the property on the basis of the said law. Ibid. —Schedule B lands being accretion to schedule A lands before the Government settled A schedule lands to the plaintiff the latter acquired no right or interest in B schedule lands by virtue of his getting A schedule lands from the Government. Ibid. S. 44— —With reference to the Partition Act it has been held that the term dwelling house’ includes not only the structure of the building but also adjacent buildings, curtilage, courtyard, garden or orchard and all that is necessary to the convenient occupation of the house; and that the phrase undivided family is not limited to Hindus but includes any group of persons related in blood who live in one house under one head, and that it applies if they are undivided qua the dwelling house which they own. The same construction applies to the words used in this section and it is not necessary that the family should have constantly lived in the dwelling house. Mulla’s Transfer of Property Act : (2nd edition) page 200. S. 46— “What is reasonable time” in each case depends upon the facts and the circumstance of the case. Fourteen years time to the parties when appears reasonable the Court will not hold otherwise. Abdul Quddus Vs. Anjuman Khatoon (1984) 36 DLR 312. —Where no time is fixed for performance of a contract it should be performed within reasonable time. Section 29 of the Contract Act provides that agreement, the meaning of which is not certain, or capable of being made certain, are void. None of the illustrations (a) to (1) of that section suggests that if the time for performance of contract is not fixed the contract would be void for uncertainty. On the other hand, section 46 of the Contract Act provides that where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time. Ibid. S. 47—Principle underlying section 47 has no application where transfer of the immovable property has been affected by person who had no such right at the time of transfer. Mst. Khaleda Rajia Khanun Vs. Mahtabuddin Chowdhury (1978) 30 DLR (SC) 27. S. 52—Lis pendens—Possession during the pendency of the suit by a party cannot alter the rights of the parties. The possession which a party to the suit obtains during the pendency of the suit instituted by the plaintiff cannot alter the rights of the parties in the suit, for those must be determined according to the position prevailing on the date of the institution of the suit. Hochenaddi Sk. Vs. Esmail Sikdar (1957) 9 DLR 294. —Where a transfer is hit by section 52 of the Transfer of Property Act, the transferee is not entitled to hold his title against a party to the suit sought to be affected by the transfer; for a suit for specific performance of a contract operates as liss pendens. Atar Ali Vs. Abed Ali (1953) 5 DLR 470. Lis pendens—The word “contentious” (which was in the section before the amending Act 20 of 1929) in section 52 of the Transfer of Property Act refers to the origin and nature of the plaintiff with reference to (his prosecution. The doctrine, therefore, becomes effective from the very moment of the institution of the bona fide suit which is in no way collusive. Sachindra Kumar Basu Vs. Sreenath Pal (1954) 6 DLR 550. —If a suit is dismissed for default and then it is restored, the order of restoration relates back and a transfer after dismissal and before restoration is subject to the doctrine of us pardons. Ibid. —The decree-holder in the mortgage decree having put the decree into execution, the judgment- debtors applied under section 36 of the Bengal Money Lenders Act to reopen the decree. The decree was re-opened and a new preliminary decree was passed making the decretal amount payable in several installments. Some time before the passing of this preliminary decree, the landlord auction-purchased the holding comprising the mortgage lands at a rentsale. The judgment-debtor having defaulted in payment of the installment dues a final decree was passed and the decree was thereafter put into execution. The landlord, who became the owner of the equity of redemption and was not made a party either to the preliminary decree or to the final decree, put in an objection under section 47, Civil Procedure Code saying that execution could not lie against him because he was not impleaded in the suit or the proceedings. Held: The landlord objector having purchased the property during the pendency of the suit, he could not be regarded as necessary party to the suit. He becomes interested in the equity of redemption during the pendency of the suit and hence the Doctrine of lis pendens under section 52 of the Transfer Property Act must operate as a bar to his plea. Debendra Ch. Saha Vs. Nabin (1955) 7 DLR 186. Involuntary alienation—It is now well settled that though section 52 itself may not apply to involuntary alienation nevertheless the principle of lis pendens applies to such alienation. Ibid. —A transfer pendente lite affecting the rights of the other parties to the suit is expressly barred by section 52 of the Transfer of Property Act. Aminul Huq Vs. SM Ibrahim (1955) 7DLR 535. —Principle of lis pendens applies in cases of involuntary alienation, though the said section may not apply. State Bank of Pakistan Vs. Khaledar Ma & others (1962) 14 DLR 734. Lis pendens—Purchase in a court-sale while a partition suit was pending—Purchaser’s purchase is hit by the doctrine of lis pendens. Sree Nath Paul vs. Sac hindra Kumar Bashu (1968) 20 DLR 97. —Transfer of land during the pendency of partition suit is hit by the doctrine of lis pendens. A partition Suit is a suit in which the right of a party in a property held jointly with others is determined and a Pew and exclusive right is created in favour of a party. Partition suit is a Suit contemplated in section 52 of the Transfer of Property Act. In this case the petitioners were inducted into the suit land during the pendency of the partition suit without the concurrence of other co-owners and the person who inducted them into the premises has not been given land which is possessed by the petitioners but he has been allotted a different saham. Co-sharer who has been allotted the saham which is in possession of petitioners is entitled to get possession of the saham allotted to him free from all encumbrances. To saddle him with encumbrances created during the litigation would render the principle of doctrine of lis pendens nugatory. Wajed Ali Vs. Sudhi Chandra Das (1968) 20 DLR 513. Principles of Lis pendens—Its application limited to immovable, property—In matters of conjugal relationship, it has no application. Nelly Zaman Vs. Giasuddin Khan (1982)34 DLR 221. —The word “transferred” in s. 52, TP Act, contemplate s transfer by sale, gift, mortgage, lease and exchange. The word ‘transferred’ means such transfers as are contemplated by the Transfer of Property Act such as, sales, gifts, mortgages, leases and exchanges. Md. Abdur Rouf and others Vs. Ahmuda Kkatun and others (1981) 33 DLR (AD) 323(324). —A transfer of the land in suit being the subject matter of the pending Suit is hit by the doctrine of (is pendens and, as such, such a transfer is not valid in law. And, consequently, such a transferee cannot apply under Or. 1, r. 10(2), CP Code to be impleaded as a party to the suit. Jamaluddin Vs. Rabeya Begum (1980)32 DLR 63. —Transfer of suit land by third party pending suit—Section does not apply. Where the suit land was transferred pending the Suit by a person who was not a party to the suit, the section does not apply to the case. Abdul Hakim Vs. Ali Muhammad PLD 1965 AK 1(BB). (Hamid, CJ). Ss. 52 and 2—Transfer governed by Muslim Law—Doctrine of us pendens does not apply—Donee under Muslim Law may transfer property pending suit for resumption of gift by donor. Section 2 of the Transfer of Property Act lies down that nothing in the Second Chapter of the Act shall be deemed to affect any rule of Muslim Law. Section 52 occurs in Chapter II of the Transfer of Property Act. It is clear, therefore, that if there is a rule of Muslim Law on the point under discussion here, then ,the principle embodied in section 52 of the Transfer of Property Act cannot be invoked. Therefore, where the donor acting under Muslim Law had delivered the possession of the property gifted to the donee, but subsequently he brought a s i for resumption of the property by revoking the gift— Held: The donees were competent to alienate the property in dispute during the pendency of the suit, as there was no order of the Court to the contrary. The gift could not, therefore: be revoked by the donor for the reason that the thing given had passed out of the donees’ possession by sale, a sale which was not hit by section 52 of the Transfer of Property Act. Ghulam Qadir Vs. Ghulam Husain, PLD 1965 (WP) Lahore 200 (Anwarul Haq). J). S. 52—Transfer of assets of firm pending suit for declaration that firm stands dissolved—Transferee acquires no right or interest in property. Where a suit was pending for a declaration that a firm had been dissolved and also for rendition of accounts and the property of the firm was transferred pending the suit. It was held that the transferee of the property did not acquire any right or interest in the property. Usman Vs. Haji Omer PLD 1966 (SC) 328 (Hamoodur Rahman, J.) S. 53A—Specific performance of the contract—Bonafide transferee. In a Suit for specific performance of a contract for sale or lease a subsequent ‘bona fide’ transferee for value without notice of original contract is an interested party; for a subsequent transferee for value, who has paid his money in good faith without notice of the original contract is entitled to hold his title against the plaintiff in a Suit for specific performance of the contract. Atar Ali Vs. Abed Ali (1953) 5 DLR 470. —Unregistered document. An unregistered document could be received in evidence in a Suit for specific performance. Dula Mia Vs. Haji Md. Ebrahim (1956)8 DLR 6(6. —The principle of part performance embodied in section 53A can only be pressed into service as a shield by a defendant to protect his possession of property which has been conveyed to him for consideration but of which the legal title has not vested in him owing to some formal defect like lack of registration of the instrument of transfer. Where the contract of transfer was ab initio void the principle has no application. 1951 PLR (Lah) 307. —An agreement of sale followed by possession No transfer of interest in the property. In an agreement of sale followed up by possession to the purchaser apart from the provisions of section 53A T.P.Act., the document itself does not constitute a transfer of any interest in the property. Enayet Hossain Vs. Member, Board of Revenue (1960)12 DLR 466. —A person who has taken possession under an unregistered lease which under section 107 of the Transfer of Property Act is required to be registered, can protect his possession on the plea of part performance under section 53A of the Act, provided he fulfils the conditions laid down therein. If a person has failed to pay the rents due it can not be said that he has fulfilled his part of the contract. Girindra Chandra Vs. Kumud Behari (1952)4 DLR 623. —Proviso to section 49 of the Registration Act allows an unregistered deed which is required to be registered to be used as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purpose of section 53A. Girindra Chandra Vs. Kumud Behari (1952) 4 DLR 623. —In a contract of sale when transferee paid the full consideration money and got possession of the disputed land, he is entitled to the protection of sec. 53A of the Transfer of Property Act and Art, 113 of the Limitation Act has no application to such a claim of the transferee. The right conferred by this section is available for a defendant to protect his possession. For the purpose of protecting his possession the section operates as a bar to the plaintiff asserting his title. In the facts of the present case the plaintiff is barred under section 53A from asserting his title and he is not entitled to get a declaration that he has his right and title in the disputed properties. Abdul Gani Khan Vs. Din Bandu Adhikari (1962) 14 DLR 663. —Property means the right in the property transferred and the remedy of the transferor is barred only with respect to the right that stands transferred by the deed. The provision of section 107 is not in conflict with that of section 53A of the Transfer of Property Act nor is the provision of section 17 of the Registration Act. Provision of section 53A does not create right or interest in violation of provision of section 107 and section 17, Registration Act. Abdullah Bhai Vs. Ahmad Din (1964) 16 DLR (SC) 169. —Section 53A of the Transfer of Property Act makes an exception in favour of the transferee in possession in respect of a document which requires registration. Section 49 of the Registration Act no doubt, provides that if a document, which is compulsorily registerable, is not registered, then such a document does not affect any rights in the property dealt with under such a document. But section 53A of the Transfer of Property Act makes an exception to this and provides that where a person obtains possession of or continues to remain in possession of a property under a document in writing which, though compulsorily registrable, has not been registered, then neither the person transferring the property nor anyone claiming under him shall be entitled to enforce against the transferee or any person claiming under him any right in respect of that property. Mst. Ghulam Sakhina Vs. Umar Bakhsh (1964) 16 DLR (SC) 38 —Deed (unregistered) of exchange, missing—Its terms sought to be proved by witnesses who never read its contents—Secondary evidence inadmissible. Mokim Mondal Vs. Ali Miah Pradhan (1966) 18 DLR 386. —Conditions for entitlement of the benefit of part performance. Under section 53A of the Transfer of Property Act a person in order to entitle himself to the benefit of the doctrine of part performance must show, inter alia, that the contract involved has been reduced to writing and signed by the person making the contract or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Mokim Mondal Vs. Ali Miah Pradhan (1966)18 DLR 386. —Agreement of purchase accompanied by possession. Agreement of purchase followed by possession in part performance of the contract for sale does not make the person in possession of such property as one in unlawful possession and therefore, such person has prima facie right over the property, if he can clearly establish his possession over the property. Kazalul Hussein Chowdhury Vs. Dy. Custodian, Enemy Property (1970) 22 DLR 345. —Protection under s.53A, Transfer of Property Act available to transferee both as plaintiff as well as defendant in suit by or against him to shield his title to property—Lessee in possession—Lease deed unregistered—Lessee, held, entitled to use unregistered lease as shield to prevent transferor from enforcing any right except those arising under such lease. The Pakistan Employees Co-operative Housing Society Ltd. (Karachi) Vs. Msi. Anwar Sultana (1969)21 PLD Karachi 474. —Relief obtainable under section 53A is not only available, by way of defense, to a defendant but can equally be invoked by a plaintiff where circumstances entitle him to claim the same. If the transferor, without taking recourse to law Courts, becomes aggressive and tries to dispossess the transferee in possession by force, it does not seem to be in consonance with good reason that the transferee in possession should not be able to prevent the transferor from committing aggression upon the property in question and protect his own possession by invoking the principle of section 53A of the Transfer of Property Act, by himself instituting a Suit as the plaintiff and obtaining the necessary restraint order against the would-be aggressor in the said suit. Mrs. June Ferguson Vs. Ameenur Rasheed Chaudhury (1973) 25 DLR 1. —Interest visualized in s.53A TP Act is neither a protected interest nor an encumbrance (within the meaning of these terms in sections 160 and 161 B.T. Act) and therefore an auction purchaser in a revenue sale gets the property free from any interests created under section 53A. Julfu Molla Vs. Noab Ali Sarkar (1975)27 DLR 441. —Right created u/s 53A—It is not an interest under clause (g) of section 160 of the Bengal Tenancy Act—Interest contemplated u/s 161 B.T. Act is a subordinate interest whereas under section 53A what the tenant intended to do was to transfer his whole interest. The kabala was not in limitation of the tenant’s interest but was a transfer of his entire interest. An interest under section 53A cannot be an encumbrance. Julfu Molla Vs. Noab Ali Sarkar (1975) 27 DLR 441. —Applicability of section 53A—Whether right under sec.53A is a legal right or an equitable or a contractual right. The question, which now arises is whether the Government of Bangladesh can completely ignore the written agreement under which the appellant entered into the possession of the property concerned on part payment of the consideration money. Under Article 4 of P0 16 of 1972 the industrial unit concerned vested in the Government which acquired the right to administer, control, manage and dispose of by transfer or otherwise the said properties in accordance with the provisions of said Order. Buxly Paints (Bangladesh) Ltd. Vs. Bangladesh (1979) 31 DLR (AD) 266. —Under the general law the Govt. which has stepped into the shoes of the Pakistani company, the original owner of the industrial unit, cannot exercise its right of possession as against the Bangladesh company by virtue of section 53A of the Transfer of Property Act which creates a positive bar to the exercise of any right including that of taking possession in view of the agreement for sale of the industrial unit between the Pakistani Company and the East Pakistani Company, in part performance of which the East Pakistan Company was inducted into possession and as such the Govt. is not entitled to interfere with the possession of the appellant Company in respect of the industrial unit in its possession. Buxly Paints (Bangladesh) Ltd. Vs. Bangladesh (1979) 31 DLR (AD) 266. —In Bangladesh when such right arising from part performance of a contract has been given a positive statutory shape in section 53A of the Transfer of Property Act, such right issues from a positive legislative enactment and is not founded merely on equity or a contract. So long as the agreement remains in force and the party in possession is agreeable to perform his part of the contract, his possession cannot be interfered with by a party to the said contract or any person claiming under the said party. Buxly Paints (Bangladesh) Ltd. Vs. Bangladesh (1979) 31 DLR (AD) 266. —Contract by part performance, must be evidenced by writing signed by the person who contracted to transfer. Mehar Khatun Vs. Sarat Kumar Kanungoe (1984)36 DLR (AD) 217. —Section 53A of Transfer of Property Act affords protection to a transferee in possession of immovable property as against the transferor or any person claiming under him when under a written contract the transferee in part performance of the contract takes possession of the property or any part thereof although the contract though required to be registered has not been registered or where there is an instrument of transfer, the transfer has not been completed in the manner prescribed thereof by the law for the time being in force. Joyanta Bijoy Chakraborty Vs. Gopesh Chandra Chakrabarty (1983) 35 DLR 319. —Defense under the section not set up in suit by ‘proforma’ defendant—Cannot raise plea during execution proceeding. Where the protection under s.53A was first raised as a defense in the execution proceedings by a proforma defendant in the suit. Held: If she had any such right, the same should have been set up as a defense in the suit itself. That not having been done, she is debarred from claiming the said protection now after a decree has been passed against her as well for specific performance. The decree of specific performance is conclusive and binding upon the appellant and she cannot be allowed now in the execution of the said decree to have the decree re-opened and the question reagitated. Birgis Jahan vs. Mohd. Hasan PLD 1964 Dacca 202 (DB). (Rahman, J). —Land sold by evacuee’s years before. partitions—Custodian can only claim balance of sale price—Cannot claim such property. Where the evacuees had sold land to the locals long before partition, the only right which the evacuee heirs of the vendor possess in the land in question was the right to receive the balance of the sale price, and not the right to dispossess the petitioners. It is only this right that must be deemed to have vested in The Custodian under section 7 of the Act and no more. Viewed in this light there is no conflict between section 53A of the Transfer of Property Act and the relevant provisions of Act XII of 1957. Therefore, the vendees have a right to keep the land and the Custodian can only claim the balance of the sale price. Muhammad Vs. Custodian of Evacuee Property, PLD 1962 (WP) Karachi 312 (DB). (Anwarul Haq, J.) —Oral agreement of transfer— Transferee in possession prior to suit but not in possession at time of suit—Benefit of section not available. The first essential requirement mentioned in the section is “where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with certainty’ In the present case, there is no writing at all signed by the transferor or on his behalf. The second requirement mentioned in the section is that “the transferee has in part-performance of the contract taken possession of the property or any part thereof or the transferee being already in possession, continues in possession in part-performance of the contract and has done some act in furtherance of the contract”. In the present case, although the defendant-appellant did come into possession of the disputed property for some time, yet at the time of the institution of the suit the appellant was admittedly out of possession. Such being the case even the second requirement laid down in the section is not fulfilled. For these reasons, section 53A is clearly not attracted to the case. Noor Mohd. Vs. Ghulam Masih Gill PLD 1965 (WP) Baghdad-ul-Jadid 1. (Anwarul Haq, J). —A plot obtained by exchange—Part performance of agreement of exchange— Benefit of s. 53A available to transferee. Where the plot was obtained in exchange for another plot and some structures were built on it in part-performance of the agreement of transfer. The transferee can enforce the specific performance of the agreement of transfer and take benefit of the provisions of s.53A. Usman Vs. Haji Omar PLD 1966 SC 328. (Hamoodur Rahman, J). —Scope—Section does not create rights for making a claim—Only provides defense for transferee. Section 53A of the Transfer of Property Act does not create a right for making a claim but only affords a defense against the transferor if he attempts to enforce a right other than one that is provided in the contract, in respect of the property of which the transferee is in possession. Anwar Sultana Vs. Pak. Co-op. housing Society Ltd., PLD 1964 (W.P.) Karachi 116 (Qadeeruddin,J.) —A sale of land by unregistered. deed without delivery of possession—Subsequent sale by registered deed—Subsequent sale has precedence. Where the previous sale of land was by an unregistered deed and possession was not delivered in consequence thereof and subsequently the same land was sold to another person by a registered deed. It was held that the subsequent sale has precedence over the previous sale. Pordil Khan Vs. Sufaid Gui. PLO 1965 (Pesh) 259. (Bashiruddin, J) —Scope—Gives protection to transferee—Does not transfer title to property in the absence of registration. All that section 53A, Transfer of Property Act, 1882 does is to protect the transferee against the transferor or any person claiming under him from enforcing any right in respect of the property notwithstanding the fact that the contract, though required to be registered, had not been registered or where there is an instrum net of transfer the same has not been completed in the manner prescribed thereof by the law for the time being in force. This protection is given to the transferee upon the fulfillment of the condition set Out in that section and upon the principle that equity looks on that as done which ought to & done. If the transferee is ready and willing to do all that he is required to do under the contract, it should not lie in the mouth of the transferor or any one flaming through him to plead absence of registration or compliance with other formalities to get out of his own obligation under the contract. This section nowhere professes to transfer the title to the purchaser. PT Co-op. Housing Society Ld. Vs. Manzoor Ahmed PLD 1961 (WP) Karachi 53 (Faruqui, J). —Transfer by unregistered deed where it should have been registered—Transferor cannot enforce any rights under the deed— Transferee may sue for specific performance of contract of sale. Under section 53A, a person who had made a transfer of some property by means of an unregistered deed, when under the law the transfer should have been made by means of a registered deed, is debarred from enforcing any right in respect of the property if the transferee has in part performance of the contract taken possession of it. When a transferee by means of a document which has not been registered, though under the law that document was compulsorily registerable, comes to Court as a plaintiff and bases his claim on part performance of the contract of transfer, he is using the part performance of the contract as a shield and not as a sword as his object is only to defend his own title and not to attack the tide of anyone else. Therefore the transferee can sue for the enforcement of a contract of sale even when it is not duly registered. Inayat Ullah Vs. Shah Muhammad PLD 1961 (WP) Lahore 372 =PLR 1961(2) WP 525(08) (Shabir, J). —The vendor cannot take shelter behind the doctrine embodied in section 53A of the Transfer of Property Act. That provision is intended for the benefit of vendees alone so as to protect them against the vendors. Manzoor Ahmad Vs. P & T Cooperative housing Society Ltd. PLD 1962 (WP) Karachi 476 (DB). (AnwarullIaq. J). —Where the transferee has made part payment of the consideration and is already in possession he is entitled to the protection granted by this section. Ghulam Hussain Vs. Ghulam Mohd, PLD 1964 BJ. 19 (UB). (Faruqui. J). S 54—A contract of re-conveyance of a property does not create any interest to the property— Rule against perpetuity has no application to an agreement when such agreement does not create any interest in the land. Abdul Quddus Vs. Anjuman Khatoon (1984)36 DLR 312. —Registration not enough to pass title. Where there is neither possession of the property alleged to have been sold, nor any proof of the payment of consideration mere registration of the sale-deed does not operate to pass title to the vendee. Ibrahim Vs. Sardar Ahmed (1955) 7 DLR (WP) 62. —It cannot be laid down a general rule that mere registration of an instrument “without reference to other circumstance operates to transfer the property. Ainuddin Vs. Samaddi Hajari (1955) 7 DLR 443. —Where a deed of sale collusively created to defeat the title of the defendant by ante-dating the same to a date prior to the date of the execution and registration of the defendant’s document, it cannot be said that mere registration has the effect of transferring title. Ainuddin Vs. Samaddi Hajari (1955) 7 DLR 443. —Although under section 54 of the Transfer of Property Act a condition of re-purchase does not create an interest or charge on the immovable property concerned, it is a benefit annexed to the ownership of land, and unless the contract is induced by considerations which are personal to the vendor, it is assignable. If it appears that the option is given as a matter of grace or favour it will be restricted to the vendor personally and will not be assignable but if it is not induced by any such consideration but in fact a part of the bargain the beneficial interest created by the contract is assignable. I PLR (,Dac) 349. —According to this section, sale is a transfer of ownership in exchange for a price not in exchange for land, and there is abundant authority for the view that “price” in this context means” money”, not anything else. 1952 PLR (Lah) 196. —Conveyance and contract of sale—Statements in a document which convert it into a sale-deed and not a contract of sale. Enayet Hossain Chowdhury Vs. Member, Board of Revenue (1960) 12 DLR 466. —If a vendor can convey a property without an instrument of sale-deed he can do it and can escape payment of stamp duty. Enayet Hussein Chowdhury Vs. Member Board of Revenue (1960)12 DLR 466. —An agreement for reconveyance of land is not a right in property. Abdus Sattar Mallik Vs. Yunus Mallik (1960) 12 DLR 849. —A sale may be complete even if the ingredients of section 54 not complied with. The mere failure of the parties to comply with the requirements of section 54 of the Transfer of Property Act as to the manner in which the transfer should be made cannot alter the nature of the transaction intended to be entered into between the vendor and the vendee or affect the pre-emptor’s right in respect of it. If the transaction amounts to a sale in fact then notwithstanding that it is not in the form prescribed by section 54 of the Transfer of Property Act the right of pre-emption will come into operation. Abdul Karim Vs. Fazal Muhammad Shah (1967) 19 DLR (SC) 477. —Agreement for sale of land binds the purchaser at Court sale with notice—the agreement for sale would bind the purchaser at a Court sale if he had notice of the agreement. Mohiuddin Mollah Vs. Province of East Pak. (1962)14 DLR (SC) 112. —A sale of immoveable property accompanied by an ekrarnama—In case of a sale of immoveable property accompanied by an ekrarnama, for the rcconvcyance of the same property to the vendor, a subsequent purchaser of the vendor’s right, he being the successor-in-interest, is entitled to enforce the right of reconveyance against the original vendee. Jalal Ahmed Vs. Thoraish Mia (1968) 20 DLR 80. —Subsequent registration of Kabalas without payment of consideration money for curing defects of earlier lease deeds cannot be called sale-deeds and as such pass no title. The plaintiff took bandabasta of the Suit property by registered lease deeds. But finding the lease deeds legally defective, the lessors subsequently transferred their interest in the property by registered Kabalas in favour of the plaintiff. Held: The Kabalas cannot be called sale-deeds and they pass no title. Makbul Ahmed Contractor Vs. Md. Idris (1969) 21 DLR 511. —‘Sale’ explained. Sale means a transfer for a fixed or ascertained price and it takes effect in the year in which the price is so fixed for till then there is no sale and the asset, unless destroyed, demolished or discarded, continues to be deemed to be in the use of the assesses. M/s. Chittagong Engineering & Electric Supply Co. Ltd. Vs. Income Tax Officer, (1970) 22 DLR (SC) 443. —Mere execution and registration of a sale-deed ipso facto does not pass title to the purchaser. Intention is consideration paramount and it can be inferred from circumstances. Mahar Ali Mathar. Vs. Daliluddin Chowkidar (1979) 31 DLR 392. —Right of reconveyance a transferable Right. A right to reconveyance cannot but be assignable, unless the terms of the contract manifest an intention to restrict the right to the transferor personally. Saukat Ali vs. Shamsun Bibi (1975) 27 DLR (SC) 59. —Sale of property worth more than Rs. 100—Not sale for purpose of preemption. Section 54 of the Transfer of Property Act, ‘1882, enjoins that sale of any immovable property worth more than Rs.100/- can be effected only by a registered deed and so, in a place where (he provisions of section 54 of the Act is in force, sale of immovable property worth more than Rs. 100/- not complying with the provision of the section is not a sale for purposes of suit for pre-emption. Jangi Vs. Jhanda PLD 1961 Baghdad-ut-Jadid 34 (DB). (Shabir,J). Ss. 54, 53—Oral transfer of land—No interest passed to transferee—Principle of part performance is not applicable. Where the transfer of land was affected by an oral agreement and it was sought to be enforced on the plea of part performance of sale. Held: The plea of part performance cannot have the effect of abrogating the provisions of the Registration Act or the Transfer of Property Act by creating an interest which under these Acts can only be created by a registered instrument. Sohna Vs. Allah Dad, PLD 1962 Baghdad-ul-Jadid 17 (DB) (Bashir Ahmad, J). The same was held in Manzoor Ahmed Vs. P & T Co-operative housing Society PLD 1962 Kar. 476 (DB). (Anwarul) Haq. J). S. 54—Oral sale of land—Right of pre-emption may be exercised in respect of sale. No doubt, a sale made in violation of the provisions of section 54 of the Transfer of Property Act would not be a valid sale, but if the law of preemption permits that a sale, which is otherwise complete, can be pre-empted and if the pre-emptor is prepared to take over (he defective title of the vendee, he cannot be prevented from doing so, simply because the vendor and the vendee have colluded with each other to deprive him of his rights. Whatever rights are possessed by the vendee, under such a defective sale, would go to the pre-emptor, if he succeeds, and if he is prepared to take that risk, it is not for the vendee to say that his title is defective and that, therefore, the defective title cannot be passed on to the pre-emptor. Gullan Vs. Mow. Ramzan PLD 1962 (WP) Baghdad-ul-Jadid 33 (DB). (Masud, J). S. 55—The principle embodied in section 55 regarding charge of the purchase money on the property sold in favour of the vendee, cannot be invoked in respect of an illegal contract which is void admit b. 1951 PLR (Lah) 307. —An agreement for sale is in fact a promise to transfer ownership of the land and if by the sale-deed the land in fact has not been transferred a breach of contract would appear to occur (he moment the sale deed is executed which has not the effect of transferring the promised title. 1953 PLR (Lah) 689. —Decree was for specific performance of contract for sale of land—Decree did not contain any direction for delivery of possession—The decree-holder is entitled to delivery of possession without such direction. Jahiruddin Ahmed Vs. Joynal Abedin Khan (1962)14 DLR 739. —“Document of title”—Income-tax clearance certificate and Custodian’s certificate—Are not such documents—Vendee not entitled to insist on “examining” such documents but only to be satisfied that vendor has obtained them. Abdul Hamid Vs. Abbas Bhai Abdul Hussain Sodawaterwala (1962)14 DLR (SC) 24. Ss. 55, 58—Sale with condition of repurchase—Repurchase can be enforced only by strict compliance with agreement. As a simple agreement for reconveyance the right of repurchase given to the plaintiff cannot but be a special privilege or a concession given to him and if the plaintiff wants to take advantage of that special privilege and concession he must strictly conform to the terms of the agreement. Abdur Rahman Vs. Raji Ranga Laskar PLD 1964 Dacca 230(DB)=PLJ? 1963 Dacca 496. (Chaudhury, J). S. 55(1)—Income-tax certificate stipulated to be produced by seller—Not produced—Buyer may rescind contract of sale. Where an agreement of sale of land provided for the securing of a no-objection certificate from the author ties by the seller as well as the making out of a marketable title, but the seller was unable to secure the certificate and unable thus to make out a marketable title. Held: That the seller had committed a breach of the terms of the agreement. P & T Co-op. Housing Society Lid. Vs. Manzoor Ahinad PLD 1961 (W.P) Karachi 53. (Faruqui, I). S. 55(2)—Apprehension that land agreed to be purchased is to be acquired by Development Authority—Purchasers may rescind contract. The purchasers were entitled to rescind the contract of sale in view of the threat of the acquisition of the lands in question. The plaintiffs would be entitled to take the attitude that they were not going to purchase the land which was under the cloud of requisition and that they were not going to wait and see what course these apprehended proceedings were going to lake. P & T Co-op. Housing Society Ltd. Vs. Manzoor Ahmad PLD 1961 (WP) Karachi 53.’ (Faruqul, J). —Where the seller not having title to the property sells the same, the buyer is entitled to recover the consideration money from the seller, and the question of limitation for the filing of the Suit to recover money in such a case does not arise. Jahura Bibi alias Bani Bibi Vs. Saijuddin Khalifa (1965)17 DLR 216. —Material defect in the title to the property—Repudiation of contract. An agreement was executed by the defendant for sale of a Certain property to the plaintiff. A certain amount was paid by the plaintiff as earnest money. The registration of the document for sale was to be completed by certain fixed date. In the meanwhile before the arrival of the date for the completion of the transaction, namely, the execution and registration, etc., the Government published a notice that a development scheme has been framed which proposed the acquisition of the property contracted to be sold to the plaintiff. The plaintiff thereupon refused to complete the sale on the ground that the notice referred to above constituted a material defect in the title to the property and demanded the return of the earnest money. Held: By the issue of the notice a material defect was created in the title which the vendor was capable of passing on the due date. Time being clearly of the essence of the contract, the purchaser was within his rights to rescind the contract at once, and the forfeiture of his earnest money was, therefore, not in accordance with the relevant stipulation in the contract. Associated hotels of India Ltd. Vs. RB Jodha Mal Kothalia (1954) 6 DLR (FC) 168. —The undertaking clearly indicates that the contract was subject to title being approved by the purchaser and that this was a term in the contract. Ibid. —Though the vendor had good title at the time of contract for sale he was not in a position to give the vendee at the time fixed for the completion of the sale, a tide free from reasonable doubt, owing to the material imperfection that set into it as a result of the notice by the Government for the acquisition of the property. The vendee was, therefore, entitled to repudiate the contract and claim back the earnest money. Ibid. —The matter is different where what the vendee desires is a piece of property, and in the result he stands to get a property different from what he contracted to get or believed that he would get under the contract. Where the vendee is faced with the prospect of being left with nothing but a sum of money as a result of his entering into the transaction, e.g. a sum by way of compensation assessed according to law the difference is even more marked. Ibid. —Covenant to indemnify is distinguishable from covenant of title. Former does not run with property sold, and benefit of it does not pass to subsequent transferees unless specially assigned— Remedy of subsequent transferee—By suit for money compensation against his own transferor. 1956 PLR (Lah) 1840. S. 55(4)—Part of sale price left with vendee to be paid to a previous mortgagee, remaining unpaid—Amount unpaid is part of consideration of sale and is a charge on property sold. 1955 PLR (Lah) 772. Ss. 55(4)(b)—Money decree creating a charge only on the suit property—Cannot be enforced for the purpose of selling the property. Where a decree is a money decree together with a declaration of charge in respect of the decrctal amount upon the plaint properties, unless a decree was passed specially for sale of the properties mere creation of charge does not, of itself, operate as a decree for its enforcement. Abdul Jubbar Vs. Abdul Aziz (1967) 19 DLR 7. —Applicability of the section—Clause (4)(b) of section 55 of the Transfer of Property Act is applicable where ownership of the Suit property has passed to the buyer before payment of the whole of the purchase money. Mahar Ali Matbar Vs. Daliluddin Chowkidar (1979)31 DLR 392. S.56—Marshalling by a subsequent purchaser. There is no reason why the equitable rule of marshalling by a subsequent purchaser embodied in section 56 of the Transfer of Property Act should not be extended to sales other than private sales. Mahtabuddin Vs. Nim Chandra Sachi (1952) 4 DLR 95. —Accordingly though a decree-holder has a right to have all the properties mortgaged to him put up for sale, it is entirely in the discretion of the Court to direct in which order the properties should be sold, if by such direction, the Court can give relief Co deserving parties without any prejudice to the interest of the decree-holder. Ibid. S. 58—Mortgage and paramount title. Where neither party objected in the Court’s going into the question of paramount title in a mortgage suit and it was contended in the High Court in second appeal that the Courts below committed an illegality in entering into the question of paramount title in a mortgage suit; Held: If it does not lead to confusion and inconvenience then the Courts arc entitled to go into the question of paramount title in a mortgage suit to satisfy the ends of justice. Held further: A mortgagee who is in possession of the land is in no way estopped from questioning title for the mortgagor as a paramount titleholder in the suit land. I PLR (Dat) 606. —The mortgage of a lease in any of the six forms specified in the Transfer of Property Act is not an absolute assignment and does not create privity of estate between the lessor and the mortgagee. Harados Dc Vs. Moazzam Hossain (1954) 6 DLR 220. —The prior mortgagee without impleading puisne mortgagee got decrees and purchased mortgaged property. The puisne mortgagee brought a suit on his mortgage, got decree and obtained possession through Court before the decrees and possession of the prior mortgagee. The purchaser of the mortgaged property in puisne mortgagee’s decree brought a suit for possession against the prior mortgagee’s purchase at a time when the prior mortgagee was barred by time. The prior mortgagee cannot claim that purchaser in the puisne mortgagee’s decree must redeem his prior mortgage. Where the prior mortgagee was not barred then he can claim, it not being necessary for prior mortgagee to bring a fresh suit. Md. Danai Vs. Syihet Loan and Banking Co. (1950) 2 DLR 9. —The true rule is that a mortgagee cannot by a mere assertion of his own or by any unilateral act of his, divest himself of his character as mortgagee and convert his possession as possession of an absolute owner. Messer Ali Matbar Vs. Jabbar Ali (1955) 7 DLR 103. —Sale with a condition of repurchase— Difference between a document as one of sale with a condition of repurchase and one of mortgage by conditional sale. The question is whether the document under reference purports to create a mortgage by conditional sale or sale with a condition of repurchase. In the margin of the document the word ‘kotkabala’ finds place and in the top margin of the document the word ‘haba-kabala’ occurs, But there are no such words in the text of the document which open with the expression. Held: If the document is read as a whole it can be found that by the rider clause in the document towards the end it was purported to be a sale with a condition of repurchase. If the clause of reconveyance is read as a whole it will appear that the power to get the property reconveyed was with the transferor and transferor alone because towards the beginning of the reconveyance clause it has been stated clearly that the transferor or his successor-in-interest could pay back the money but the right to have the property reconveyed was to the transferor himself. Such use of first person singular in the deed itself cannot give right to a dispute regarding the right to take reconveyance of the property by anyone other than the transferor himself. The language cannot be interpreted to mean that this right to take the reconveyance was given to the successor-in-interest of the transferor. It was thus a personal covenant of the transferor. Md. Affan Vs. Tazal Hoque (1975) 27 DLR 58. S. 58(b)—Mortgage security (by deposit of title deeds) furnished for advance of loans already made as well as for those to be made afterwards—All advances on this security shall be on the basis of the single mortgage already made and for limitation the time will run from the date of last advance. M/s. Tripura Modern Bank Ltd. Vs. Islam Khan (1971) 23 DLR 22. Simple and usufructuary mortgage—Mortgage—Difference between simple and usufructuary mortgage—Delivery of possession being an essential condition in case of usufructuary mortgage—S subsequent delivery of possession where the mortgage is a simple mortgage will not convert it into usufructuary mortgage. (1956) 8 DLR 599. S. 58(c)—Mortgage by conditional sale—Test to differentiate between mortgage and s1le. It appears that at the top of the document Ext. 3(a) there is mention of kot-kabala although in the body of the document it has been described as ???? ?????? ???????? ????????. It has also been stated in the document that the transferee would be entitled to mutate his name in the Sherista of the landlord and to enjoy the properties as his own with the right of inheritance and that he would be entitled to possess, settle, etc. In the last part of the document it has stated that in case the transferor or his heirs repay the consideration money, the sold land would be released. Thereafter again it has been stated that the document has a kabala. The word ‘khalash” is also quite prominent in the document. By reason of the confusion created as a result of use of the expressions like “khalash, kabala, kotkabala, sale,” it became essential to enter into the intention of the parties. In the instant case before us we find that the following elements arc in favour of the plaintiff: 1. inadequacy of price; 2. no time limit; 3. purchase of stamps and payment of registration costs by mortgagor (should be taken as indicative of mortgage); 4. stipulation of repurchase in the same document; and 5. use of the expression kot-kabala” in the very body of the document and not merely in the margin as in the other case. There are again certain other additional features, namely, that the transferor continued to pay rents. Then again mukti patra executed by the transferee shows that the document was a kot-kabala. In these circumstances, it must be held that the present is a case of mortgage by conditional sale. When the integrity of the mortgage has been split up by redemption of a part of it, partial redemption of the remaining part can be allowed. Tazel Hoque Vs. Md. Affan (1968) 20 DLR 282. —Sale or mortgage. Tests to ascertain whether a deed is a sale-deed or mortgage by conditional sale. Question whether a particular document is a mortgage or a sale has to be determined with reference— (1) To the terms of the document itself with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to the existing facts; (2) With reference to another fact viz time elapsed from the time when the bargain was made between the parties to the time when the present suit was instituted; (3) The tests for determination of the question are not the same in this country as in England; (4) The applicability of Bulter’s test; (5) The court must find the substance behind the form. Girish Ch. Roy Vs. Hassan Mia (1950) 2 DLR 290. —In constructing a document the following recitals in the document should be taken in-to consideration (i) If within the period fixed the executants do not redeem the Kot then the absolute maliki right shall accrue to the recipients; (ii) If the document begins and also ends with word kot-kabala and there is no such word as is found usually in a sale deed “bikray kabala” or kabala. (iii) The mere fact that the period mentioned is a short one is not conclusive to show that the transaction is a sale. (a) The fact that the recipients of the documents bear the cost of registration is not sufficient alone to convert a transaction into a sale. (b) The fact that there is no stipulation for payment of interest is also of no avail to convert the transaction into a sale. Girish Ch. Roy Vs. Hassan Mia (1950)2 DLR 290. Sale or mortgage—A sale with a condition of repurchase is not a mortgage. The distinction between a sale and a mortgage is one of intention. Abdul Hafiz Chowdhury Vs. Samer Ali (1952) 4 DLR 126. —Various tests which have been devised for determining whether the intention is to mortgage or to sell are; (i) the existence of a debt, (ii) the period of repayment—a short period being indicative of a sale and a long period of a mortgage; (iii) possession of the property, the continuance of the grantor in possession indicating a mortgage (iv) existence or otherwise of a stipulation for payment of interest or reconveyance, a stipulation for interest or repayment indicating mortgage. (v) adequacy or inadequacy of the consideration, a price below the true value indicating mortgage, (vi) presence or otherwise of the stipulation of conveyance in the document itself, the stipulation of reconveyance embodied in the deed prima facie indicating that the transaction is a mortgage; and (vii) purchase of stamps and payment of registration costs, the same if done by the transferee being indicative of a sale. Abdul Haflz Chowdhury Vs. Samer Ali (1952) 4 DLR 126. —The adequacy or inadequacy of the price is a test which must be cautiously applied. In deciding a question whether a transaction is a sale or a mortgage, the Court must find the substance behind the form. Ibid. —The adequacy or inadequacy of the price on transfer is a test which must be cautiously applied for, in ascertaining the amount of the consideration, the right of the repurchase, which must necessarily fetter the ownership of the buyer, is never left out of consideration and mere inadequacy of the price, unless it is very great, is not, therefore, a safe test. It is also now well-established from decided cases that a longer period for reconveyance indicates a mortgage, while a short period indicates a sale. Abdul Majid Vs. Serajuddin (1952) 4 DLR 478. —In absence of a stipulation that the recipient will have to reconvey the disputed property in the same state and condition as it was taken from the vendors at the date of the sale, the agreement is a mere personal covenant and cannot convert a sale to one of mortgage by conditional sale. Ibid. —Embodiment in the document of sale of the condition of repurchase as provided for in the new proviso to clause (c) of section 58 is not a decisive test. The effect of the proviso is that if the condition of repurchase is not embodied in the document, the transaction will not be regarded as a mortgage but it does not follow that if the condition is embodied in the document the transaction must necessarily be a mortgage. Abdul Haflz Chowdhury Vs. Samr All (1952) 4 DLR 126. Abdul Majid Vs. Serajuddin (1952)4 DLR 478. —If a document prima fade appears to be a mortgage, it is nevertheless open, to the other side to show that it was intended to be an out and out sale. Two documents, one a sale-deed followed by an agreement to re-transfer the property, do not constitute a mortgage unless it appears from the documents in the light of the surrounding circumstances that the parties intended the transaction to be a mortgage and in a suit for redemption instituted many years after the transaction, cogent reasons of such intention are necessary. The fact that there are two documents instead of one does not make any difference. Chandra Kanta Howlader Vs. Rama Prasanna Ganguly. (1953)5 DLR 29. —Though the transaction may in fact have been a mortgage, yet, when the condition of re-sale is not embodied in the document that effects or purports to effect the sale, then the transaction cannot be treated as a mortgage. ‘The rule laid down in the proviso to clause(c) of section 58 is a rigid one and unless the stipulation regarding reconveyance is embodied in the document of sale, the transaction (entered into after the date on which the proviso was incorporated by the Amending Act of 1929). will not be treated as a mortgage, the intention of parties or the fact that the condition of repurchase was embodied in a separate document will be irrelevant. Principle laid down in the case of Chandra Kanta Howladar [(1953) 5 DLR 29)] held not applicable after the incorporation of the proviso. Abdus Sattar Mallik Vs. Yunus Mallik (1960) 12 DLR 849. —Condition embodied in the same document—prima fade mortgage by conditional sale. Proviso to section 58(c) of the Transfer of Property Act does not lay down any rule that if the condition is embodied in the same document, it shall be deemed to be a mortgage or there will be a presumption of a mortgage by conditional sale, shifting the onus on the other side to show that the transaction is an out and out sale. The most important tests by which to judge whether a transaction is a mortgage or out and out sale arc(a) existence of debt, (b) the period of payment, (c) the continuance of the grantor in possession, (d) stipulation for interest on repayment, (c) the value of the property in question. (1952) 2 DLR (Dac) 443. —Condition of repurchase or conditional sale. In order to determine whether the documents constituted are absolute sale with a condition of repurchase or a mortgage by conditional sale subsequent conduct of the parties can be taken into consideration when some of them are not representative-in- interest of the parties to the documents. Section 92 of the Evidence Act does not stand as bar to that. Chandra Kanta Howlader Vs. Rama Prasanna Ganguly (1953)5 DLR 29. —The expression “such payment” in section 58(c) means payment on a certain date. Ibid. —Sale—Out and out sale with another deed for reconveyance within a certain period of time executed simultaneously—Enforceable in law—Consideration is the mutually enforceable contract. Shyama Pada Singha Vs. Dhirendra N Bhadra (1957) 9 DLR 439. —Where the kabala and the ekramama were executed on the same day and at the same sitting, they formed contemporaneous agreements and the consideration for the ekrarnama was in part the execution of the kabala and the transfer of the lands thereby made. Ibid. —Clause (C) of section 58 applicable to a mortgage by conditional sale or similar mortgages—Suit for redemption of mortgage maintainable when money has been tendered and refused. The terms of section 58(c) of the Transfer of Property Act apply only to a mortgage by conditional sale or a mortgage of a similar nature and not to a sale or to a mortgage of any other kind, namely, a usufructuary mortgage. I hold that the aforesaid mortgages are not hit by the provisions of section 58(c) of the Transfer of Property Act. A person interested in the equity of redemption tendered the dues within the stipulated period but on refusal by the defendant to accept the same, they were sent by money orders, which again were refused by the latter. In this context, there has been a valid tender so as to give rise to a right to institute a suit for redemption by the plaintiffs. If the mortgage debt is paid, or a tender thereof is made, by any person interested in the equity of redemption, a mortgage suit can be instituted by any other person who has a right to the equity of redemption. Nabin Chandra Moral Vs. Lalit Mohan Das (1967) 19 DLR 338. —Sale or mortgage—Tests for determining—The following tests have been devised to determine whether the intention was to mortgage or to sell. (i) the existence of a debt; (ii) the period of repayment—a short period being indicative of a sale and a long period of a mortgage; (iii) Possession of the property, the continuance of the grantor in possession indicating a mortgage; (iv) existence or otherwise of a stipulation for interest on repayment indicating a mortgage; (v) adequacy or inadequacy of the consideration, as inadequate price indicating a mortgage; (vi) presence or otherwise of the stipulation of re-conveyance in the document itself, the stipulation of reconveyance embodied in the deed being prima facie an indication that the transaction is a mortgage; and (vii) purchase of stamps and payment or registration costs; the same, if done by the transferee, being indicative of a sale. Tazel Hossain Vs. Md. Affan (1965) 17 DLR 613. —Covenant for repurchase—Personal suit by heirs. Where the covenant for repurchase is personal the suit for re-conveyance at the instance of the heirs of the transferor is not maintainable. Ibid. —Mortgage by deposit of title deeds— When requires registration. A mortgage by deposit of title deeds does not require any writing and being an oral transaction is not affected by the Law of Registration. It is however usual in these transactions that such deposit of title deeds is accompanied by a memorandum in writing. The question which often arises is whether the writing was of such a character as to require registration. The decision of that question must necessarily turn upon the nature of the document itself though assistance may be had from the consideration of the surrounding circumstances. Begum Vs. Fatimabhai, PLD 1961 (WP) Karachi 537. (Faruqui. J). S. 58(d)—Under section 58(d), Transfer of Property Act a usufructuary mortgage creates a liability. Tasiruddin Sk. Vs. Asaruddin Mallik (1950) 2 DLR 55. —Usufructuary mortgage—Definition—Does not contain a personal obligation to pay debt. According to section 58(d) of the Transfer of Property Act, where the mortgagor delivers possession of the mortgaged property to the mortgagee and authorizes him to retain such possession until payment of the mortgage money and to receive the rents and profits accruing from the property in lieu of interest or in payment of mortgage money, or partly in lieu of interest and partly in lieu of mortgage money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee. The very definition of the expression “usufructuary mortgage” as given in section 58(d) of the Transfer of Property Act indicates that the mortgagor is not personally liable for payment of the mortgage debt. If such an obligation exists in a transaction of mortgage, the mortgage would be either a simple mortgage, an English mortgage, a mortgage by deposit of tide deeds or an anomalous mortgage. In all such cases, there must be an obligation by the mortgagor to pay the mortgage debt personally; but if no such obligation is created, the mortgage, without any doubt, would be a usufructuary mortgage. Khushi Mohd. Vs. Sultan Ali PLD 1962 (WP) Lahore 960 ‘Masud, I.) S. 58(f)—Equitable mortgage by deposit of title deeds—Ingredients which have to be established.—No such mortgage is created with mere deposit of title deeds for advances to be made in future. It is well-settled that in the case of a mortgage by delivery of title deeds, the debt must be proved, the deposit of title deeds has to be established and the intention that the tide deeds deposited was as a security for the rent should be made out. It is also established on authorities that a mortgage by delivery of tide deeds is not created when the deeds arc deposited before any money is advanced with a view to prepare a future mortgage, and there is no express agreement that they shall stand as security for future advances. Tide deeds may be deposited under an oral agreement to cover present and future advance. Subha Karam Vs. State Bank of Pakistan (7962) 14 DLR 193. —Mortgage by deposit of title deeds with intent to create a security thereon—Letters showing deposit of title-deeds unless create a relationship between the parties in present do not require registration. Where it is found that letters showed the deposit of title-deed in the past registration not necessary and are admissible in evidence. United Bank of India Ltd. Vs. Azirannessa Bewa (1965) 17 DLR (SC) 169. Mortgage by deposit of title deeds— Memorandum of deposit of title deeds purporting to create in present interest in property in favour of plaintiff—Such writing constitutes contract of mortgage and not mere record of completed transaction, and is compulsorily registrable—Such writing, in absence of registration, held, not only inadmissible in evidence but also does not create any mortgage— Deposit of title deeds not independent of such writing—No right or interest, in circumstances, held, could be created in property even by deposit of title deeds. Messrs. Eagle Star Insurance Co. Ltd. Vs. Messrs Usman Sons Ltd. (1969) 21 PLD (Kar) 123. —Equitable mortgage—Extract from record-of-rights—Not a title deed—Cannot create equitable mortgage. The extract from the record-of-rights cannot at all be treated as a title deed, because of conveyance of the land no property in the extract, which can be obtained by any person from the survey office on payment of requisite fee, can be said to pass to the purchaser. Ibid. —Equitable mortgage—Mortgage not proved in favour of plaintiff for want of registration of memoranduin of deposit of title-deeds—-Advance of loan and receipt thereof, however, not denied by defendant-plaintiff, in circumstances, held, entitled to money decree. Ibid. S. 59A—Under Section 59A of the Act the heirs of a mortgagee are entitled to recover payment of the mortgage debt and enforce the mortgage in a court of law just as much as the original mortgagee. Abdus Sattar Howladar Vs. Afeluddin Chokdar (1952)4 DLR 89. S. 60—A co-mortgagor by redeeming the mortgage in full, cannot be held by his own action to have split up the integrity of the mortgage giving a right of piece-meal redemption to the other mortgagors. There is only one condition in which the integrity of the mortgage can be said to be split up and that is provided for under section 60 of the Act, and that case is where a mortgagee has acquired the share of the mortgagor 55 CWN (3 DR) 15. Redemption, equity of— Rights available to the holder of the equity of redemption, when such equity of redemption is entirely unrepresented in a suit, (i) in the case of simple mortgage, and (ii) in the case of a puisne mortgage. Hohenaddin Shaikh Vs. Esmail Sikdar (1957) 9 DLR 294. —Where the equity of redemption was entirely unrepresented, in other words, where the holder of the equity of redemption was not made a party in a mortgage suit, neither the decree nor the sale in execution of the decree in such a suit would affect the rights of the holder of the equity of redemption. Rights which arc available to the holder of an equity of redemption are as follows: Right of redemption—Extension of time In the case of a simple mortgage, the mortgagor even after the mortgage retains in himself (a) right to redeem the mortgage property and (b) a right to the physical possession and enjoyment of the property; If the equity of redemption is unrepresented in a suit, then these two rights remain vested in the holder of such equity of redemption and his right to redeem the property and to remain in physical possession thereof remains unaffected. Where there is nothing left to redeem, as for example, where the enforcement of the mortgage has become barred by limitation, the right to remain in possession must necessarily remain absolutely unaffected and free from the right of redemption. In the case of a puisn mortgagee, it is wrong to think that he has as such puisne mortgagee any right to possession, for, as a puisne mortgagee, his rights are (a) to redeem a prior mortgage and (b) to foreclose against the mortgagor and, unless such foreclosure has taken place in accordance with law, the equity of redemption, which includes the right to possession, remains with the mortgagor. Hohenaddin Shaikh Vs. Esmail Sikdar (1957) 9 DLR 294. —Until and unless preliminary decree is followed by an appropriate final decree, defendants are not debarred from redeeming the mortgage, if the court extends time limited in the preliminary decree, which the court is entitled to do under the law. Yad Ali Sk. Vs. Hazrat Ali Fakir (1954) 6 DLR 612. —The right of redemption is governed by principle of indivisibility of the mortgage security. Neither the mortgagor nor the mortgagee can have any relief inconsistent with this principle unless there is any special stipulation in the mortgage bond or any subsequent arrangement between all the parties concerned, authorizing a departure. In the absence of such stipulation or arrangements the owner of a fragment of the right of redemption cannot redeem share unless the mortgagee or all the mortgagees, where there are more mortgagees than one, has have acquired in whole or in part the share of a mortgagor. His right is a right to redeem the entire mortgage and he can enforce this right even though the mortgagee is willing to allow him to redeem his share only. Sm. Sabeda Khatun Vs. Nayeb Ali (1953)5 DLR 57. —Court’s power to set aside the order for delivery of possession. Where after the delivery of possession was taken by the mortgagee in executing a final decree for foreclosure, the mortgagor files objections to the exclusion under section 47 CPC, and asked the court, in exercise of its equitable jurisdiction, to set aside the order for delivery of possession and give sufficient time for payment of the money due under the decree. Held: The court had no power within its equitable jurisdiction to grant relief sought. The proviso to section 60 and the provisions of Section 91, Transfer of Property Act in themselves may not be conclusive, but the provisions of Or. 34, rr.2(c) and of the Code of Civil Procedure put the question beyond doubt. Sardar Autar Singh Vs. Sir Md. Ejaj Rasul Khan (1951)3 DLR 366. Principle of indivisibility of mortgage Mortgagee’s right in regard to whole mortgage debt-property sold for arrears of revenue. Lands referred to in sale papers constituting only portion of mortgage lands.—original mortgagee cannot claim any mortgage rights in the remaining lands. By a deed dated 25th May 1921A mortgages with possession of certain land in village S along with his other lands to B for Rs. 23,000. In 1935 land revenue in respect of the mortgaged land being in arrears, the mortgage rights of value of Rs. 23,000 in respect of the land in villages were put to by auction and the said rights were purchased by The sale was confirmed under section 92 of the Land Revenue Act, 1887 and a certificate to that effect was issued to C. Subsequently on 23rd August, 1939, B transferred his mortgage rights in the mortgage dated 25th May 1921 to D who sued to enforce rights: Held: As a result of revenues sale in 1935 the of B in the full sum of Rs. 23,000 were transferred to C and nothing was left in B that could pass to D by transfer on 23rd August 1939. It could not be contended that because the mortgage rights in respect of lands in village S only were referred to in the revenue sale, the rights of the mortgage B in respect of other lands were still outstanding in B, as B could not part with his mortgage rights in respect of the whole of the mortgage debt and yet retain any part of his rights in respect of some part of the mortgage land. The position is the same whether the mortgagee sells himself or as here his rights are sold by paramount authority. Golam Sarwar Khan Vs. Abdul Wahab Khan (1951)3 DLR (PC) 41. Ss. 60 and 61—Plaintiff mortgagors must sue to redeem the entire mortgage and not their own share only. One of the mortgagors alone subsequently mortgaging property to mortgagee plaintiff mortgagors not bound to redeem such subsequent mortgage along with the first. (1952) PLR (Lah) 509. S. 60—All persons interested in the equity of redemption need not be impleaded in a suit. Section 60 of the Transfer of Property Act does not require that all persons who have a right to the equity of redemption must be joined in a suit. In this case the suits were instituted by the original mortgagors against the original mortgagee, namely, the defendant. The original mortgagors also impleaded their transferee of a fraction of the mortgaged property as a co-plaintiff, the transfer having been made by the plaintiffs themselves. If a decree is given in favour of the plaintiffs, the mortgaged property would stand transferred to the plaintiffs. Niban Chandra Moral Vs. Lalit Mohan Das (1967) 19 DLR 338. —Purchase of a share in the equity of redemption whether in Court sale or by a private treaty cannot discharge mortgage debt fully. State Bank of Pakistan Vs. Khaledar Ma (1962) 14 DLR 734. —Tenancy right not affected because of a mortgage between the landlord (as mortgagor) and the tenant on the security of the tenanted land. The original tenancy right between landlord and tenant does not cease to exist merely on the ground the landlord mortgages the same property rented the tenant, if the mortgage money is later on paid by the landlord or a transferee of the landlord. The disappearance of mortgage with the payment of mortgage money by the mortgagor can in no way affect the tenancy right inasmuch as the tenancy right is an independent transaction which has no relationship with the part transaction. Noor Ahmed Vs. Md. Safi (1970) 22 DLR (WP) 39. Equity of redemption—When extinguished by mortgagor’s default. In this case the mortgagor defaulted to pay the arrears rent and the mortgagee was not under any obligation either in law or in contract to pay the arrear rent for which the land was sold out in the execution of a rent decree and the right of redemption of the mortgagor was extinguished. In Guari Shankor Sahu Vs. Sheotahag, AIR 1936 Patna 434 it was held that the rent sale extinguished the mortgagor’s equity of redemption when it was not proved to be fraudulent. The same view was followed in Fckua Mahso Vs. Babu Lal Sohu, AIR Patna 382. In the present case the plaintiff’s equity of redemption was extinguished for his own default to pay arrear rent and there is no evidence to show that the mortgaged property was collusively or fraudulently sold Out for any default of the mortgagee. In the present case the mortgagee or his heirs had not undertaken any obligation to pay arrear rent for which the land was sold in a rent sale and there was no evidence to show that the suit property was sold in the execution of a rent decree because of any default or any collusion of the mortgagee or their heirs. (Had the mortgaged property been purchased by defendant No.8 or had defendant No. 9 purchased the property in the benami of the heirs of Abdur Rashid or in collusion with them, then, by operation of section 90 of the Trusts Act, defendant Nos. I to 8 could be held responsible for holding the property for the benefit of the mortgagor and fiduciary relationship between the mortgagor and mortgagee would have subsisted and the suit would have been within time under Article 148 of the Limitation Act. Plaintiff’s right of redemption was extinguished long ago when the mortgaged property was sold in execution of a rent decree. Sukhendu Bikash De & anr. Vs. Nurul Islam & ors. (1979) 31 DLR 71. S. 63—Mortgagor liable to pay cost for provident when any of the tests under the section is fulfilled. State Bank of Pakistan Vs. Khaledar Ma. (1962)14 DLR 734. S. 64—A property can only be transferred by, a deed of conveyance—Contract of sale does not pass title to the property. Ashutosh Mali & ors. Vs. Shams unnahar & ors. (1981) 33 DLR 254. —Transfer does not date back to the date of agreement for sale. Date on which registration of the Kabala takes place would be date for determining the status of tenancy. Ibid. Sections 65 and 66—Mortgagor in possession, entitled to create leases A mortgagor in possession being the owner his property is not only entitled to create leases like patni and permanent leases but may do so irrespective of their effect upon the mortgage security, provided, only that they are not wasteful or destructive within the meaning of section 66 of the Transfer of Properly Act. The principle limiting the right of the mortgagor to alienate or create any interest with respect to the mortgaged property which is peculiar of English Law has no application to the mortgages in this country. - Since the mortgage money in a mortgage without possession can never be fixed the right of the mortgagor to create interest in the mortgaged property must depend on the slate of the mortgage account at the moment of the creation of such interest. Kali Prasad Chakraboruty Vs. Jitendra N Chowdhury (1952) 4 DLR 15. S. 67—Stipulation that if money is not paid within 15 years the purchaser shall have right to foreclose—Section 67 applies. Moulvi Ruhul Amin Vs. Bazal Huq & ors. (1979) 31 DLR 165. —Mortgagor—When he is barred to redeem the mortgaged property. Even in the case of mortgage by a conditional sale the mortgage does not automatically mature into sale. Section 67 of the Transfer of Property confers upon the mortgagee, any time after the mortgage money has become due to him and before a decree has been made for redemption of the mortgaged property, a right to obtain from the Court a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or a decree that the property be sold. Hasina Begum Vs. Haji Md. Ekramullah (1982) 34 DLR 116. —Right to redeem, in case of mortgage by conditional sale. If the mortgage is not foreclosed and the mortgagor’s right of redemption is not debarred. So far as the right to redeem is concerned, a mortgage by a conditional sale like othcr mortgages will be governed by provisions of the Transfer of Property Act. Hasina Begum Vs. Haji Md. Ekramullah (1982) 34 DLR 116. S.73—The object of section 73 of the Transfer of Property Act is only to protect a mortgagee whose security has been diminished. The section does not lay down that if a mortgaged property is sold owing to failure to pay arrears of revenue or other charges of a public nature or rent due in respect of such property the only remedy of a mortgagee is to claim payment of his money Out of any surplus of the sale-proceeds. The section permits a mortgagee to take recourse to this section only when his security has been diminished on account of sale as contemplated by section 73. Tripura Modern Bank Ltd. Vs. Khan Bahadur Khalilur Rahman (1973) 25 DLR (SC) 34. S. 76—Mortgagee in possession is to pay rent. Before the amendment of section 76(c) of the Transfer of Property Act the land as regards the liability of the mortgagee in possession for arrears of rent can be found in the provisions of sub-section (d) of section 65 of the Transfer of Property Act and that section was not amended by the Act 20 of 1929. That section says that the mortgagor is to pay rent if the mortgagee is not in possession. From this it can be legitimately deduced that the mortgagee in possession is to pay rent. Alip Chand Bibi Vs. Karamwlla (1954) 6 DLR 115. —If the mortgage of a leasehold property amounts to an assignment or transfer, the mortgagee would be liable for the rent to the landlord. Haradas Dc. Vs. Moazam Hossain (1954) 6 DLR 220. —A sale in execution of a decree for rent against a mortgagee in possession of a lease-hold property does not affect the lessee’s right. Haradas Dc. Vs. Moazzam Hossain (1954)6 DLR 220. S. 76(c)—Where a usufructuary mortgagee takes upon himself the burden of paying off the rent of the property under mortgage and makes the stipulation that if for any default in payment of rent the mortgage property is lost on account of sale for arrears of rent and purchased by the mortgagee or his successor-in-interest, that purchase will ensure to the benefit of the mortgagor, specially where the purchase takes place, in relation to a decree for arrears of rent for the period under mortgage. Safayat Ali Shah Vs. Annada Pr. Roy (1955) 7 DLR 222. —Under section 76(c) of the Transfer of Property Act, mortgagees are responsible for sale of the property in execution of a decree for arrears of rent even though they are for a period prior to the execution of the deed. (1954) 6DLR 115. —The mortgagee in possession of the mortgaged property is bound to pay the usual rent and protect the property from the sale. If the land is sold at a certificate sale for default in payment of rents by him, it is still open to redemption by mortgagor. 6 PLR (Dac) 210. S. 76(e)—The true rule is that a mortgagee cannot, by a mere assertion of his own or by any unilateral act of his, divest himself of his character as mortgagee and convert his possession as possession of an absolute owner. Mesar Ali Matbar Vs. Jabbar Ali (1955) 7 DLR 103. Ss. 76(h) and 77—The exception laid down in section 77 of the Transfer of Property Act is subject to the rule embodied in section 5 of the Assam Money Lenders (Amendment) Act, 1943 which limits die liability of the mortgagor to double the principal of the loan. Keramat Ullah Vs. Manindra Ch. Datta (1954) 6 DLR 45. —Refund of the excess paid. Where there has been excess payment over double the principal, the mortgagor on the application of the rule of accounting and refund laid down in section 76(h) of the Transfer of Property Act can ask for a refund of the excess paid whether or not there was any contract that the usufruct would be set off against interest or interest and a specified portion of the principal. Keramat Ullah Vs. Manindra Ch. Datta (1954) 6 DLR 45. Excess of the double of the principal In determining whether the money lender has received any sum in excess of the double of the principal of the original loan, amounts set off before the commencement of the amending Act are required to be taken into account. Keramat Ullah Vs. Manindra Ch. Dana (1954) 6 DLR 45. S. 82—Contribution to mortgage debt—Not against mortgagee. Section 82 applies to mortgagors inter se and gives one mortgagor a right to have the other property contribute to the discharge of the mortgage debt. This right cannot be availed of against mortgagee or auction purchaser. 54 CWN (DR-2) 287. S. 83—No deposit, when necessary. Section 83 has no application when by reason of section 26 GBT Act the property is free from liability. All that section 83 of the Transfer of Property Act says is that the amount remaining due on the mortgage may be deposited. If nothing is due, then no deposit is obviously called for. Sm. Sabeda Khatun Vs. Nayeb Ali (1953) 5 DLR 57. Ss. 83 and 84—Mortgage—Minor—Misrepresentation—Minor entering into mortgage fraudulently representing as to his age and subsequently bringing action for restitution of mortgaged property—Restitution of property to be ordered—Minor must, however, be made to refund consideration— Maxim He who seeks equity must do equity. Shah Pasand Khan Vs. Hasan (1969)21 PLD (Pesh) 306. S. 91A—Partial owner of the equity of redemption is entitled to redeem the whole mortgage. Arab Ali and others Vs. Abdul Khaleque Prodhania & ors. (1981)33DLR 11. S. 92—Subrogation—Insurance Company can be subrogated in the position of the insured and thereby become vested with the right of the latter to sue the person liable originally to the insured. Trans Oceanic Steamship Vs. Issak Haji Shakoor (1960) 12 DLR 690. ‘Redeemed in full’—Explained The words “redeemed in full” in section 92(4) do not mean that the subrogator should pay the entire amount himself. All that is required by the section is that the payment either of the entire sums Secured by the bond or such portion as may be outstanding at the time, provided it puts an end to the right to the mortgagee under the bond, and redeems the mortgage in full, will give rise to a right of subrogation. 55 CWN (3 DR) 15. S. 95—One of several mortgagors— What connotes Section 95 has by Act XX of 1929 been amended in such a way that sections 92 and 95 of the Act, as they now stand make it clear that the right of the co-mortgagor redeeming is the “same right as the mortgagee whose mortgage he redeems may have against the mortgagor” occurring in section 92 of the Act. “One of several mortgagors” in section 95 means one of several persons interested in the equity of redemption. 55 CWN (3 DR) 15. —S.100—Charge—Registration of document—creating a, when necessary— Unregistered document creating a charge where the amount involved is over Rs. 100/- not admissible. Abdur Razzak liowladar Vs. Sh. Muhammad Shaft (1960) 12 DLR 395. —Charge as distinguished from mortgage. A charge comes into existence when property of one person is by act of parties or operation of law made security for the payment of money to another and the transaction does not amount to mortgage. Abdur Razzak Howladar Vs. Sh. Muhammad Shaft (1962) 14 DLR (SC) 119. S. 101—Two mortgages held by same person—Merger of mortgages only when they are intended to be so treated. A merger of estates takes place when two estates held in the same legal right become united in the same person. Where the capacity in which a person in possession of the mortgagee’s right is something quite different from the capacity in which he is in possession of the equity of redemption, the mere fact that the two capacities are united in the same physical person cannot result in a merger. But merger can be held to have taken place only by proving that the person in whom both the rights vest had intended to treat both the rights as one, and not otherwise. Gula Jan Vs. Sahib Gul. PLD 1963 (WP) Peshawar 1 I0=PLR 1964(2) WP 900. (Daud, J). —Rule of merger. Section 101 deals only with mortgages and charges; it is inapplicable to a case where a right of rcconveyancc having been reserved by a vendor, that right is subsequently sold by the vendor to the vendee but this does not necessarily mean that where see- lion 101 does not apply, the rule of merger should be applied. The section as it states makes non- merger the rule, and consequently merger an exception. (1952) PLR (Lah) 196. S. 105—Tenant-at-will liable to pay compensation and not rent. The designation “tenant-at-will” though gives the impression of a tenant, it lacks the incidents of an ordinary tenancy, for, a tenant-at-will is not liable to pay any rent and there being no question of demise or lease in his case he is not liable for mesne profits or damages like a trespasser because his occupation is permissive; but he is liable to pay compensation for such USC and occupation. Rai Mohan Chowdhury Vs. Tejendra Lal Roy (1954) 6 DLR 577. —Nowhere in the Transfer of Property Act a tenant-at-will is recognized as a lessee. Section 105 recognizes only a lease for a certain time, express or implied, that is periodic leases or leases in perpetuity. Ibid. Sections 105 and 106—Purpose of the lease will determine whether a lease will be governed by the BT Act or the TP Act. Where the purpose for which a lease was granted was for residential and shop purposes the main fact that part of the lease-hold was agricultural wilt not take it out of the scope of the Transfer of Property Act, the principle being that the purpose of the lease will determine whether a lease will be governed by the BT Act or the TP Act. Ramani Mokan Mozumdar Vs. Jasodha KamarNath (1959)11 DLR 253. —Lease—The English rule that a conveyance to operate as a lease must reserve reversion to the lessor has no application to the Transfer of Property Act. Mohsin and Tahir Vs. Firoze Nana Ghuiam Ali (1958) 10 DLR (WP) 45. S. 105—Lease and license—Line of demarcation. The line of demarcation between a lease and a license will sometimes be very thin. A lease is a transfer of an interest in immovable property. Ownership of physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership. Abdullah Bhai Vs. Ahmad Din (1964) 16 DLR (SC) 169 —The right of ownership as well as the rights of which it is composed are rights in rem and not in personam and by the lease a right in rem is transferred to the lessee. On the other hand, a “license” will appear from its definition in section 52 of the Easements Act as merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a license only a personal agreement between the licensor and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right in rem passes to the licensee. The Criterion for distinguishing between a lease and a license is simple, i.e., whether any right in immovable property itself, a right in rem, has passed to the person concerned. But the determination of this question may be difficult in the circumstances of a particular case. Where there is a document the evidence will have to be considered with due regard to the provisions of sections 91 and 92 of Evidence Act, 1872. Abdulah Bhai Vs Ahmed Din (1964) 16 DLR (SC) 169. —Government servant occupying Government quarter allotted to him is neither a licensee nor his possession is permissive like the possession of a tenant-at-will—He is a lessee from month to month. Md. Aboo Abdullah Vs. Province of East Pakistan (1970) 22 DLR 392. —Lease and license—Lease creates limited interest in immovable property which is both heritable and transferable—Licence does not create any interest in property; so it is neither heritable nor transferable. Mianjan Ali Vs. Province of East Pakistan (1970) 22 DLR 235. Ss. 105 and 106—The essential elements constituting a icase, arc the following; (a) the right must be one as to immovable property; (b) the right must be that of enjoyment of immovable property; (c) there must be a transfer of such right; (d) the right of transfer is an interest in property; (c) the transfer must be made for a certain time, express or implied, or in perpetuity; (1) the transfer must be one for consideration; (g) the consideration must be of the particular kind namely, premium or rent, as defined by the section, either or both of them. Abdus Sattar & Ors. Vs. Suresh Chandra Das (1980) 32 DLR (AD) 170. —Termination of a lease on quit notice—Right of occupation is a personal one and cannot create any interest in the land—This right ceases with the death of either of the parties and hence not heritable. Ibid. S. 106—Lease for a manufacturing purpose—Notice to quit A lease for the purpose of preparing ornaments being for a manufacturing purpose, is to be determined by 6 months notice under section 106 of the Transfer of Property Act. Mohsin and Tahir Vs. Firoze Nana Ghulam Aly (1958) 10 DLR (WP) 45. —Notice to quit—Monthly tenancy. When a monthly tenancy commenced from a particular month, it means that the tenancy commenced from the 1st date of that month to be terminated with the last date of every Bengali month. Notice was served on the 4th of Karuck, 1351 asking the tenant to quit by the last date of the month of Kartick, 1951. Held: The notice served was a valid and sufficient notice. Sri Nath Bhuiya Vs. Gopal Ch. Chattopadhyay (1955) 7 DLR 56 —Notice refused by addressee— Addresses fixed with knowledge of its contents. If a person refuses a notice, he should be affected with knowledge of it contents. If a letter reached the other party and was refused by him, he must be affected within the knowledge of the letter which he refused to read. If the defendant has minded to satisfy the court that he got no opportunity to get the letter, it was for him rather than for the plaintiff to call evidence to prove what he asks the court to accept. Byramji Hormosji Ghadialy Vs. Mst. Sarabai (1959) 11 DLR (WP) 165. Monthly tenant—Holding over, has an accruing interest during every month thereafter as a tenant. Under the Transfer of Property Act, a tenant holding any premises for a month has an accruing interest during every month thereafter springing out of the original contract and as parcel of it, and oral agreement of lease accompanied by delivery of possession is valid for the first month and thereafter the lessee continuing in possession with the assent of the lessor, expressed or implied, becomes a tenant by holding over under section 106 of the Transfer of Property Act. Therefore, a tenant holding such a tenancy has an interest for the month with an accruing interest during every month thereafter springing Out of the original contract and as parcel of it. Such a tenancy is also transferable if allowed under the terms of the lease and under the provisions of law. Gouri Bala Pal Vs. Kunja Lal Saha (1960) 12 DLR 37. —On the death of the original tenant the tenancy devolves on the heirs and can only be terminated by a notice to quit. Ibid. —A pucca building consisting of 3 rooms and the land on which the building stood and also the open space lying to the west of the building were let Out and the demised lease-hold is described as consisting of ‘niskar’ land, etc., and the ‘pucca building’ for a term of two years with the option of one renewal. The lessee failed to exercise the option of renewal and continued Lo hold the tenancy as monthly tenant. The plaintiffs determined the tenancy by 15 days’ notice to quit after the expiry of the month: Held: The notice to quit is valid, legal and sufficient; the tenancy being a monthly tenancy 15 days’ notice was quite sufficient. Faizur Rahman Vs. Jogendra Mohan Das (1951) 3 DLR 115. —An ex-tenant under East Bengal Nonagricultural Tenancy Act cannot claim the benefit of service of notice. Nihar Ranjan Pal Vs. Mst. Nurannessa Chowdhurani (1958) 10 DLR 472. —No notice to quit is necessary as against a sub-tenant. Sk. Md. Amir Ali Vs. Abdur Rahim (1957) 9 DLR 102. —Notice to quit—The other incident of the tenancy which is lacking in the case of a tenant-at- will is that a tenant-at-will is not entitled to any ejectment notice as in the case of other tenants and the landlord may file an ejectment Suit straight away without serving any notice of ejectment on him. If a suit has to be filed against him, Article 139 of the Limitation Act will not apply but Article 144 will apply and this latter Article also applies to a suit against a trespasser. Rai Mohan Chowdhury Vs. Tejendra Lal Roy (1954)6 DLR 577. —Monthly tenant—15 days’ notice. Where a non-agricultural land is held by a nonagricultural tenant as monthly tenant the provisions of section 106 of T.P.Act will apply and the tenant will be entitled to 15 days’ notice for the purpose of a suit for ejectment. Bengal River Service Ltd. Vs. Sree. Muralidhar Ray (1955) 7DLR 525. —The provisions in section 106 of the T.P.Act for 15 days notice expiring with the end of the month of the tenancy is one and the single rule of law and cannot be split up into two—one as to the length of the period of notice and the other terminating that period with the ending of the month of the tenancy. Abdus Sattar Vs. Syed Shaha Md. Hassan Ali Quaderi (1956)8 DLR 316. —The agreement was to the effect that three months notice will be required to be served on the tenant for vacating the premises. Held: The agreement about three months’ notice being contrary to section 106, these provisions about 3 months’ notice is to be taken from the date of service of notice and after the expiry of three months the tenancy will terminate. Ibid. —In terms of agreement a 3 months’ notice was served on 12.3.54 asking the tenant to vacate the house on the expiry of the 1st. day of July, 1954. Held: This is a valid compliance with the agreement between the parties. Section 106 TP Act has no application in this case. Ibid. —A notice to quit though not strictly accurate or consistent in its statements, may be effective, and should be construed not with a desire to find fault in the notice which would render it defective but on the principle than it is better for a thing to have the effect than be void. Ibid. —Plaintiffs are entitled to get a decree for rent as under section 116 of the Transfer of Property Act, defendants would be held to be tenant under plaintiffs by holding over after the termination of the lease. Settlement of a new lease in favour of a third party cannot affect defendants’ right which can only be terminated by a valid notice under section 106, Transfer of Property Act. Alimas Ullah Vs. Srish Ch. Dam (1951) 3 DLR 526; 1 PLR (Dac) 593. —In the absence of a valid notice to quit the defendants who are tenants by holding over arc liable to pay rent. Ibid. —Even supposing that the tenancy was terninated by a lease to a third party then also defendant, though having no lawful title, are tenants on sufferance and liable to pay rent. Ibid. —Notice to quit on or before a date, being the date on which tenancy expires is a good notice. In the case of a monthly tenancy where it does not appear from what date the tenancy commenced, a notice terminating the lease with the end of the month following is valid and legal. Satish Ch. Pal Vs. Mst. Mazidan Begum (1958) 10 DLR 271. —Notice need not contain the date of the commencement of the tenancy when evidence during trial clears the point. Monthly tenancy expires on the midnight of the 30th of each month. Ramani Mohan Mozumdar Vs. Joshodha Kr. Nath (1959) 11 DLR 253. —The lease in this case expired on the last day of the month. One months notice given on 3rd August, 1954, and received by the tenant on 8th August 1954, the regulating suit having been instituted on 13th November, 1954, was held in order, not only because it did not contravene section 106, but also because the suit had been instituted more than 3 months after notice ruling Out any possibility of prejudice on the score of the notice not having expired on the last day of the month of tenancy. 1956 PLR (Lah) 112. —Denial of the title of—Forfeiture. In a suit for ejectment by landlords the denial of the title of the plaintiff would in law result in the forfeiture of the right of the leasehold interest of the defendants. Lessees whose tenancy is terminated by notice under section 106 of the T.P. Act is estopped in an ejectment suit from setting up title subsequently acquired by them in the suit lands. Bayza Bibi Vs. Debendra Lal Roy (1950)2 DLR 360. —When the question is whether the lease was for dwelling purpose or manufacturing purpose.—Matters to be looked into. In order to decide whether a tenancy has been obtained for a manufacturing purpose, one must find the actual purpose for which the lease was obtained. If a lease of some premises was obtained for the purpose of dwelling and the said premises had been used for manufacturing purpose, it cannot be held that mere’ user of the building for manufacturing purpose would make the lease a lease for manufacturing purpose within the meaning of section 106 of the said Act. Conversely, in the absence of any other evidence to the contrary, a long user for a manufacturing purpose would constitute a good circumstantial evidence that the lease was obtained for such a purpose. Shaikh Mahmudur Rahman Vs. Amulya Kumar Sarker (1967) 19 DLR 743. —Quit notice—After the expiry of the lease period (which provided for 6 months’ notice) period of quit notice shall be as provided by section 106. AK Fazlul Huq Vs. Nibaran Chandra Saha (1967)19 DLR 901. —Notice to quit—Slight inaccuracies will not render the notice invalid. Nehar Ali Biswas Vs. Nazam Negar Rashida (1967)19 DLR 905. —Notice to quit should be interpreted liberally and not found illegal for slight inaccuracies. By the notice the plaintiff has directed the defendant to quit the premises ‘by the 31st December, 1960. It was contended that the word “by” has no legal meaning but its dictionary meaning is ‘during’ and accordingly the possession of a tenant of a premises during subsistence of the tenancy is a lawful one and as such the tenant could not have been asked to vacate during the subsistence of the tenancy. Held: The rule of construction of a notice to quit is to put upon it a liberal construction in order that it should not be defeated by slight inaccuracies on the date of the expiry of the notice. But at the same Lime the notice must be reasonably certain so that the recipient of it is not misled as to the intention of the notice-giver. Messers Memon Trading Co. Vs. Messrs Hajee Gaffar Fiajee Habib Janno (1965) 17 DLR 677. —Lease—Notice to vacate on or before a date being the date on which the lease terminates is a valid notice. The landlord served a notice on the tenant (a monthly tenant) on the 1st Bhadra under section 106 of the Transfer of Property Act to vacate the premise on or before the 1St day of Aswin next. It was contended that the notice was bad inasmuch as the defendant was asked to vacate on or before the 1st of Aswin although the lease would terminate by the mid-night of 1st of Aswin. Held: For the fact that by the notice the defendant was asked to vacate on or before the 1st day of Aswin, it cannot be held that the notice was bad. A notice to quit on or before a date being the date on which the tenancy expires is a good notice. Ahmadur Rahman Vs. Sheikh Mafazzal Hossain (1962) 14 DLR 826. —Presumption of due service of notice under the section. The question is, has the notice been served validly? It has been proved that it was sent by post to the address of the defendant and that it has come back to the plaintiff on refusal by defendant to accept service of the said notice. The postal cover under which the notice was sent bears the endorsement of the postal peon to the effect that it was refused. It is, therefore, clear that the appellate Court below has rightly held that the said tenancy was terminated by a good notice under section 106 of the Transfer of Property Act and that it has been properly served, as required by law. Sultan Ahmed Vs. Sayed Ahmed (1967) 19 DLR 42. —Suit for ejectment’ of tenant— Sufficiency of notice under section 106 T.P. Act determining tenancy in respect of suit premises belonging to the wakf estate in his personal capacity but he filed the suit as mutawalli of the wakf estate— Held: Notice so served is not valid, legal and sufficient and the suit filed on its basis must fail. Abdul Hafiz Vs. Syed Md. Kazem (1971)23 DLR 12. —Period of notice provided in section 106— Has no application when period of such notice is mutually agreed upon. Goalundo Industries Vs. Pakistan (1970) 22 DLR 349. —Termination of a tenancy by service of notice under section 106 of the Transfer of Property Act, does not entitle the Government to evict a tenant by the summary procedure of Act X of 1953. The petitioners who were monthly tenants under the Government had their lease of monthly tenancy terminated by service of notice under section 106 of the Transfer of Property Act by the Government. When on demand they refused to vacate the premises, they were sought to be summarily evicted by the application of the provisions of section 5 of the Act of 1953. The petitioners then moved the High Court under Art, 98 of the Constitution of Pakistan, 1962 on the ground that invoking the summary provisions of a different Act, namely, Act X of 1953 for evicting the petitioners was wholly unauthorized in law. Held: The petitioners as monthly tenants of the building who are not Government servants do not come within the mischief Act X of 1953 and therefore, not liable to be evicted under the provisions of the Act. Amin Medical hail Vs. Province of East Pakistan (1970) 22 DLR 555. —Printing and publishing business, not a manufacturing business—Type-foundry is, no doubt, a manufacturing business, but where it is just subsidiary to the printing business which is the principal business, such type-foundry cannot acquire the status of manufacturing business. Shamsher Nessa Sakeba Bwioo Vs. Ali Mohsenuddin Ahmed (1975) 27 DLR 643. —A wrong number given in the notice to quit issued under sec. 106 TP Act will not invalidate a suit for eviction, if the party had a clear conception of the actual subject of the suit, notwithstanding the wrong description. Fazilatunnessa Vs. Nowshad Ali (1977) 29 DLR 315. —Notice to quit is intended to afford an opportunity to the tenant to vacate the premises without resorting to any litigation and it is only when he refused to vacate that he can be evicted through due process of law. Ibid. —A liberal construction should be put on notice to quit. It is the duty of the court to put a liberal construction in order that the notice to quit is not defeated by any slight inaccuracy and the recipient is not misled as to the intention of the notice giver. Ibid. —Monthly tenancy cannot be terminated without notice u/s.106. In the absence of legal proof that a valid notice as required under section 106 of the Transfer of Property Act, terminating a monthly tenancy was served on the tenants, a suit for eviction of the tenant is not maintainable in law. Mir Deiwar Hossain Vs. Joynal Abedin (1977) 29 DLR 214. —If a tenancy is a monthly tenancy the month must either be referable to a calendar month or fixed by contract. Ibid. —Premises at the inception taken for use as a godown—Subsequent conversion of it without the landlord’s consent for manufacturing purpose will not change its original character. Hayatunnessa Vs. Abdur Rahman (J974) 26 DLR 342. —In the absence of a contract or local usage a lease of immovable property for agricultural or manufacturing purpose is a yearly lease and 6 months notice is necessary. All other leases are to be deemed as leases from month to month terminable with 15 - days’ notice. Ibid. —The tenancy (which was for manufacturing purpose) commenced on 1st Falgoon, 1362 B.S.— Notice to quit the premises by 31st Chaitra, 1382 was served u/s. 106 T.P. Act giving 9 months’ time to vacate—Defense contention was that the termination of the tenancy should coincide with the year of tenancy. Here it should be on 31st. March, 1382 (i.e. last day of the year of tenancy) Held: In place of 6 months’ notice u/S. 106 TP Act the defendant in this case has got 9 months’ time to quit and as such notice to quit is valid in law. Iuman Mia Vs. Zainab Bibi, wife of Haji Abdus Salam (1983) 35 DLR 351. —Notice received by the addressee’s wife’s brother (who had been in the service of the addressee) on the addressee’s premises is a proper service as contemplated u/s 106, though he may not be regarded as a member of the family. Hajee Khabiruddin Ahmed Vs. Md. Salam Kabir (1982) 34 DLR (AD) 271. —Plaintiff was the tenant of the shop room under the Pourashava who transferred the same to defendant 4 with notice to the plaintiff and instructing him at the same time to attorn to defendant 4 as his landlord failing which he was required to vacate the premises—Plaintiff was further asked to clear off arrears to the Pourashava—Plaintiff did neither— Notice to the plaintiff by the Pourashava is a notice u/s.106 and on his failure to vacate the premises he was liable to be evicted. Md. Zahir Abdullah Khan @ Zahir Abdullah Khan Vs. Abdul Latif (1983) 35 DLR (AD) 354. —Tenancy created on payment of rent—A monthly tenancy is terminable by 15 days’ notice. The Bangladesh Premises Rent Control Ordinance says, a tenant means a person by whom, or on whose account, rent is payable for any premises, and includes a legal representative as defined in the Code of Civil Procedure, and a person continuing in possession after the termination of a tenancy in his favour. A glance at the definition along with the definition of ‘landlord’, which is nothing but the counterpart of the tenant, indicates that the definition was inserted in the Ordinance only to emphasize the tenant’s liability to pay rent and nothing more, and this meaning becomes clear when we advert to the second half of the definition of ‘tenant’, which says that it also included a person continuing in possession after the termination of his tenancy. Abdus Satar Vs. Suresh Ch. Das (1980)32 DLR (AD) 170. —Tenancy-at-will creates a personal relation between the original landlord and the tenant and is terminable by the death of either—Lease is created u/s. 106 TP Act. Ibid. —Terminating a tenancy from year to year—How to be counted. Whether the notice period of six months as contemplated in the law for terminating a tenancy from year to year under section 106 of the Transfer of Property Act must end with the expiry of the year of the lease or with the expiry of the calendar year and whether the notice terminating the tenancy, therefore, conformed with -the statutory requirement. According to the learned Counsel, if the lease is from year to year which, in his opinion, it is, the notice to vacate should have been given six months prior to the end of the year of the lease, and not with the end of the calendar year. As the kabuliyat was registered on 9th Falgun, 1356 B.S. corresponding to February 21 1950 the period under notice should have ended on 8th Falgoon of the year in which notice was given. Instead of this, the notice which was served by registered post on 25th Aswin, 1366 B.S. asked the appellant to vacate by 30th Chaitra, 1366 B.S. As no particular date has been mentioned in the kabuliyat as to when the lease commenced, according to Mr. Khondaker, it commenced from the date of the making of the lease. Nur Banu Vs. Noor Mohammad and others (1983) 35 DLR (AD) 182. —Issue as to sufficiency of notice not having been raised in the courts below, the defendant can not be allowed to raise it now. Ibid. —Sufficiency of notice—as decided by the Privy Council. In the case of Benoy Krishna Das, (37 CWN PCi) the terms of the lease showed that the lease was “from the 1st day of June, 1921 for the term of four years thence next ensuing”. The lease ended on the midnight of 1st June, 1925. Any notice to determine the tenancy thereafter given must be a notice to quit expiring with the month ending at midnight on the first day of the month. Here, the tenants held over and notice to determine their monthly tenancy was given on 1st February, 1928. The Judicial Committee held that the notice was a proper notice under section 106 of the Transferor Property Act and it expired on the midnight of 1st March and not on the 29th of February. Nur Banu Vs. Noor Mohammad and others (1983)35 DLR (AD) 182(183). —Notice under section returned refused by post office—If notice is sufficient for termination of tenancy. The question of the presumption of service through the post is obviously one that has to be decided upon the facts of each case and seeing the envelope in this case and the postal endorsement thereon, we have no doubt that we are perfectly safe in accepting the presumption that arises under section 114(c) in this particular case. Therefore the refusal of the notice under s.106 would be sufficient to terminate tenancy. Jaffer Sultan Zaidi Vs. United Commercial Corpn. Ltd. PLD 1962 (WP) Karachi 561 (DB) (Raymond, J) [But see PLD 1963 Dacca 477 ‘DB) 1. —Notice—plea that notice, was not proper not raised in trial Court—Not allowed to be raised in appeal. Where the validity of notice was not challenged in lower Court but was sought to be raised for the first time in appeal. Held: The appellant is not entitled to raise the question of the validity of the notice of ejectment at appellate stage for the first time. Rajabali Vs. Gujrat Bus Service PLD 1961 (WP) Karachi 486 (DB) (Anwarul Haq, J). —One month’s notice alleged to have been given to tenant to vacate premises— Notice for period less than one month— Notice is invalid. When the allegation in the plaint was that one month’s notice had been given to the tenant to vacate the premises but it was found that the notice was for less than one month. The landlord urged that he should be taken to have given 15 days’ notice as provided under this section. The Court repelled the contention and held that as the allegation was of one month’s notice, the fact that it was for a shorter period would be fatal for the suit. GA Jaffery Vs. Karachi Port Trust PLD 1962 (Kar) 32 (Wahiduddin, J.) —Monthly tenancy expiring after 4 months—Tenant continuing in possession subsequently—Liable to pay rent. Where the four months of the lease expired on 24.7.49 and the defendants continued in possession without any objection by the plaintiff. Years passed and the plaintiff claimed rent. Held: That the plaintiff had assented to the defendants continuing in possession and, therefore, the lease must be held to have been renewed from month to month because that was the purpose of it as specified in section 106 of the Transfer of Property Act. Zahir Ahmad Vs. Seth Sugnichand PLD 1965 (WP) Karachi 195. Sections 106 and 107—Whether a lease is monthly or yearly, depends upon the contract. It is not at all correct to say that there cannot be a yearly lease for the purpose of a shop. Whether lease is monthly or yearly, depends primarily upon the contract by which it was made. It is only in the absence of any contract or local law or usage that the question of its purpose arises; and the rule is that a lease for any purpose, other than for agriculture or manufacture, must be deemed to be a lease from month to month. No doubt section 106 of the Transfer of Property Act draws a line of division between lease for agricultural or manufacturing purposes on one side and the rest on the other; but it does not interfere with the freedom of contract. Md. Siddik Vs. Rabeya Khatun (1954)6 DLR 250. —Reservation of an annual rent. The reservation of an annual rent is not by itself sufficient to prove in every case that the lease is from year to year. A mere reservation of an annual rent would not make a lease from year to year unless the deed is registered or where a contrary intention is deciticible from the contract between the parties. Ibid. —Where an annual rent has been reserved with a provision for forfeiture, fixing 30th Chaitra every year as the fatal date of default it does not show that a monthly tenancy was intended. The default of monthly installment has no adverse consequence until the end of the year and this fact is of importance, for it goes to show that the tenant is not to be disturbed even though he had failed to pay the rent until the end of the year Ibid. Ss. 106, 107 & 110—Kabuliyat being a document executed by one party only, provisions of sections 106 & 110 will not apply to it. Nur Banu Vs. Noor Mohd. (1983) 35 DLR (AD) 182. Ss. 106, 108—Sub-lessee or assignee of lease—Cannot be evicted without termination of lease. Sub-lessee or assignee of lease cannot be evicted without terminating the original lease. Kasim Vs. Chandrabahan PLD 1962 (Kar) 253 (DB). (Wahiduddin. J.) Ss.106 and 110—Where after the expiry of the lease the tenant holds over, the notice to quit should be served considering the provisions of section 106 read with section 110 of the Transfer of Property Act. Where after the expiry of the original lease, a tenant continues to be a tenant by holding over, then as regards service of notice to quit, the terms of the original agreement shall govern the same unless a new agreement is made. It is created quite independent of the original tenancy unless an agreement to the contrary is to be found. Kobbat Ahmed Vs. Abdul Sabur Sawdagar (1973) 25 DLR 282. Ss. 106 and 111(g)(e)—When the denial of title will operate as forfeiture whereby notice under section 106 dispensed with. The denial of the title of the plaintiff in order to operate as a forfeiture enabling the plaintiff to dispense with the notice under section 106 of the Transfer of Property Act is available when the same is done on an earlier occasion prior to the filing of the suit itself. Denial of the title of the plaintiff-landlord in the written statement of a suit is not available as a ground for forfeiture, which dispenses with necessity of serving a notice so far as is required to be provided in that suit itself though such a denial may be clearly taken advantage of for other purposes as well as in subsequent suits. The denial of the title of the plaintiff by the defendant in this suit, however, is possible to be taken advantage of by the plaintiff on a subsequent occasion. Ahmed Hossain Chowdhury Vs. Mst. Zakia Khatun (1968) 20 DLR 1154. Ss. 106 and 116—Lease agreement of a premises expired—Tenant continued in possession in absence of renewal of the original lease or further agreement and the landlord accepted the rent— Holding over of such premises by the tenant will be governed not by the original lease but by the general provisions of section 106 of the Act. Md. Rafique Vs. Md. Siddique (1970) 22 DLR 56. Ss. 106, 117—Agricultural leases— Provisions of s.106 should not be applied rigorously unless there is notification in official gazette. The principles embodied in section106 of the Transfer of Property Act are not to be regarded as being opposed to principles of justice, equity and good conscience, but at the same time they are not to be applied in all their rigour to agricultural leases, in the absence of a notification in this behalf under section 117 of the Transfer of Property Act. Rajabali Vs. Gujrat Bus Service PLD 1961 (WP) Karachi 486 (DB) (Anwarul Haq, J). S. 107—Lease for indefinite period— Defendant’s liability Lease for indefinite period—Implies a life-grant unless it is otherwise from words used or conduct of parties. Swarna Kumari Roy Vs. Sukmal Ch. Roy (1954) 6 DLR 474. —Verbal lease for one year—Lease continues after first year with possession and landlord accepting rents—Valid tenancy, as holding over. A verbal lease for more than one year accompanied by delivery of possession is valid for the first year and if the tenant continues in possession even after the first year and the landlord accepts rent from him, he will be regarded as a tenant by holding over. Roshan Ali Vs. Mosammat Abedur Nessa (1962) 14 DLR 583. —Patta executed only by lessor, void and not enforceable. The paua in die present case was a unilateral document executed only by lessor, and not both by the lessor and the lessee. This unilateral patta offends against the provision of section 107 of the Transfer of Property Act and is, therefore, void. Mst. Laila Begum Vs. Mst. Maleka Khatun (1968) 20 DLR 475. —Extension of the lease without delivery of possession—Invalid. After the termination of the original lease an extension of the lease was granted but as there was no delivery of possession accompanying the lease. Held: Lease not valid. A lease for nonagricultural purposes for one year or less can be created either by a registered instrument or by oral agreement But such lease must be accompanied by delivery of possession as required under section 107 of the Transfer of Property Act. Province of East Pakistan Vs. Sayed Ahmed Miyan (1968) 20 DLR 106. —Even in a monthly lease the lessee not liable to eviction on 15 days notice, if his claim of tenancy is in respect of land. Defendants purchased plaintiffs shop and took settlement of the land on which the shop stood and claimed a tenancy right in respect of the land by oral agreement accompanied by delivery of possession. It was contended that such a lease other than for agriculture or manufacturing purposes shall be decumcd to be a monthly lease and the defendant is liable to eviction by 15 days’ notice. Held: The defendant in the present case claimed his tenancy right to the land itself; so he is not liable to eviction on 15 days’ notice. Sara Chandra Biswas Vs. Mozam Sardar (1970) 22 DLR 102. —Unilateral lease document void for offending against provisions of section 107 of T.P. Act— Lessor and lessee respectively executed unilateral patta and kabuliyat the same day—The two documents cannot be treated as one for complying with the provisions of section 107. As each of the documents has not been executed by both the lessor and the lessee, the lease is void. Sheik Md. Siddique Vs. Hari Lal Nath (1970) 22 DLR 359. —Lessor created a perpetual lease-deed in respect of some non-agricultural land in favour of lessee for —The lease-deed (a registered document) was executed by the lessor alone and not by the lessee. Held: No valid deed is created unless the lease- deed is executed by both the lessor and the lessee. Whether a tenancy will be governed by the Transfer of Property Act or by the Bengal Tenancy Act will depend upon the purpose for which the tenancy was created and not on the actual user of the land. Syed Imteyazuddin Hossain Vs. Md. Abdal Majid (1970) 22 DLR 451. —Amalnama (not registered) showing lease for 11 years—It is admissible only to show that there was a lease just for one year. It is urged that the tenant took settlement of the fishery for eleven years from the ex-rent receiver under an Amalnama. It is, on the other hand, argued that the Amalnama (evidencing a lease of 11 years being an unregistered instrument) cannot operate to create a right in the land. Held: Although there could not be any lease for all the eleven years in the absence of a registered instrument but there was still a tenancy for a period of one year and it has been found that the rent was paid for the first year. Hence he was a tenant for the particular year. Province of East Pakistan Vs. Nakuldas Mirdha (1968) 20 DLR 769. —Lease, purpose of—Lease created by an unilateral document is not hit by section 107 T.P.Act where reading the document as a whole it appears that the lease was created for agricultural purposes— Recitals to the effect that if the land remains fallow and unproductive, still the same will not be admitted as an excuse for non-payment of rent or reduction of the same and if the area of the land is found to be more on survey then the lessee will be liable for higher rent along with the stipulation that the lessee will be entitled to plant trees on the bank of the tank and rear fish therein indicate that the lease created is for agricultural purposes. Azizur Rahman Vs. Hedayet Ahmed Chowdhury (1972)24 DLR 11. —No need of registration of an instrument creating tenancy for a year or less although governed by the Transfer of Property Act. Province of East Pakistan Vs. Abdul Jalil MoIla (1968) 20 DLR 1223. —A lease-deed (10 years in the present case)— Not an agreement of lease within the meaning of section 107 of the Transfer of Property Act unless the rent to be paid by the lessee is fixed and the deed registered. Sh. Barket Ullah Vs. Khawaja Mohammad Ibrahim, (1970) 22 DLR (SC) 419. —Unregistered lease-deed of immovable property from year to year is inadmissible in evidence for lack of registration. Abdul Majid Mia Vs. MW. Nabiruddin Pramanik (1970) 22 DLR (SC) 360. —Oral lease granted—Terms of lease subsequently entered on a memo—Memo does not require registration. Where an oral lease of property was granted and subsequently a meno in the form of a rent note was written to state the terms of the lease, and it was contended that as rent note was not registered, the lease did not materialize. Held: It is plain from the rent note itself that lease had already been granted and in the circumstances it must follow that it was by an oral agreement accompanied by possession. Such a lease does not require to be registered as is provided by section 107, Transfer of Property Act. Zahir Ahmed Vs. Seth Sugnichand PLR 1965 (WP) Karachi 195 (DB) (Faruqui, J). Ss. 107, 116—Unregistered lease for more than one year—Lease operates for first year—Continuance of lease subsequent to first year by holding over must. be proved by lessee. A lease of immovable property for a term exceeding one year, though made without a registered instrument, is valid for the first year; and if the lessee Continues to be in possession thereafter and the lessor accepts rent from him, a tenancy by holding over, from month to month or year to year, as the case may be, is created. Such tenancy must be teriminated in accordance with law before the lessor can resume possession. But the fact that there has been a lease for a year and that thereafter the lease was continued by holding over, the landlord having accepted rents, shall have to be established on evidence. Boshirullah Vs. Province of East Pakistan PLD 1962 Dacca 126=PLR 1961 Dacca 1000 (DB) (Murshid, J). Section 107—A patta unless executed both by the lessor and the lessee is void under section 107 of the Transfer of Property Act. A patta in order to create an interest must be executed by both the lessor and the lessee as required by this section. Where a patta was executed and registered only by the lessor the patta is void being in contravention of the provision of section 107 of the Transfer of Property Act. Therefore, the defendant No. I did not derive, any right title or interest in the land in suit on the basis of the said patta. Narendra Nath Vs. Abdur Rahman (1974) 26 DLR 45. S. 108—Material defect in the property The provisions of section 108 of the Transfer of Property Act can be invoked only if the plaintiff specifics the material defect in the property with reference to its intended use. and alleges that the defendant was aware of such defect and not the plaintiff and the plaintiff would not with ordinary care discover such defect. Hazi Abdul Karim Vs. Sk. Ali Mohd. (1959) 11 DLR (SC) 313. —Unauthorized structure rose by tenant—Landlord cannot claim damages— Remedies. The raising of the unauthorized structure or violation of the implied terms of the provisions of section 108, Transfer of Property Act, 1882, did not in the least entitle the landlord to claim damages unless and until it was also proved that the tenant by any of his acts had caused physical injury to the property which had resulted in some loss to the landlord. The misuse of property is one thing and wrongful use and occupation of property is another thing. The occupation or possession of a tenement can become wrongful only after the tenancy is terminated and not before that. As long as the tenancy subsisted the occupation of the tenant, in the instant case, was not that of a trespasser and no damages could be claimed from him by the landlord simply because the tenant was wrongfully making beneficial use of the demised property. Aslam Fazal Ahmad Vs. Ghulam Muhammad PLD 1961 (WP) Kar 248 (DB) (Wahiduddin,J.) S. 108(a)(b)_ApPlicabilit3’ of the section—Failure to deliver possession— Liability for rent. Section 108(a)(b) of the Transfer of Property Act is applicable to an agreement for lease where it contains a term which entitles the tenant to occupy the property under it, of which specific performance could be granted. The tenant stands in the same position as if lease has been granted to him and the landlord is bound at the request of the tenant to put him in possession of the property. Section 108 imposes a clear obligation on the lessor to put the lessee in getting the possession of the property and he cannot avoid responsibility on the ground that the agreement stipulates that it is in the tenant’s occupation or the tenant has agreed to pay rent in advance. Where the tenants are under agreement to pay rent in advance unconditionally from a certain date their liability to pay it continues till the time the landlord’s arc called upon to discharge their obligation of putting the tenants in possession. Any breach of section 108, Transfer of Property Act committed by the landlords at a later stage will not absolve the tenants from their liability to pay rent for the earlier period. In cases of breach of an agreement for lease the tenant is entitled to claim damages to be assessed on the actual loss including loss of profit which the tenant had suffered on account of the alleged breach. PLR (1960)2 WP 834 (FB). S.. 108(b)—When the lease is not valid, as not being accompanied by delivery of possession—a suit for damage against the lessor does not lie. Province of East Pak. Vs. Syed Ahmed Mia (1968) 20 DLR 106. S. 108(d)—Accession during the continuance of the lease Section 108(d) of the Transfer of Property Act provides that if during the continuance of the lease any accession is made to the property such accession (subject to the law relating to alluvian for the time being in force) shall be deemed to be comprised in the lease. Satya Sudihr Ghosal Vs. Surendra Lal (1954) 6 DLR 497. S. 108(e)—When entire subject-matter of lease destroyed by fare section 108(e) of T.P.Act not applicable—Such case governed by general principies of law. Golam Rahman Vs. Emaratannissa Begum (1970) 22 DLR 126. —Clause (e) of s. 108 of the TP Act provides for instances in which a material part of a property is wholly destroyed or rendered substantially and permanently unfit for use for the purpose it is let, in which case the tenant has an option to terminate the lease. Sec. 108(c) does not deal with the case of total destruction of the subject-matter of the lease. Azizur Rahman Vs. Abdus Sakur (1984) 36 DLR (AD) 195. S. 108(f)—Repairs without notice to the landlord. Section 108(f) of the Transfer of Property Act and also section 18 of the Calcutta House Rent Control Ordinance does not entitle a lessee of leasehold premises to make repairs, however, urgent the repairs may be, without giving notice to the landlord. 2 PLR (Dacc) 457. S. 108(n)—Trustees or lessors clothed with fiduciary character—Their disability. Where a lessor reposes confidence in the lessee to fulfill the statutory obligation embodied in section 108(n) of the Transfer of Property Act truly and faithfully, there is to this extent a fiduciary relationship between the lessor and the lessee and the latter who will not be allowed to put himself in a position where his duty and his own interest come in conflict and to obtain an advantage over the lessor whom he is bound to protect by giving a timely information of the threat to his proprietary right. Khan Bahadur Khalilor Rahman Vs. Binoy Ranjan Kanungoe (1962)14 DLR 84 —When a person puts himself in the position of a tenant under another, if the former allows to fall in arrears and then on a decree oblaincu exparte, himself (i.e., the tenant) purchases the property in the benami of some person, he puts himself in relation to his landlord in a fiduciary position and in purchasing this property (bcnami) in execution proceedings he acts in violation of the provisions of section 108(n) of the T. P. Act and thus cannot retain the benefit of his purchase. Held: Section 108(n) of the Transfer of Property Act imposes an obligation upon the lessee to notify to the lessor of any invasion upon his proprietary rights by legal proceedings or otherwise, Dasudar, in the present case, had reposed confidence in Kanungo to fulfill this statutory obligation truly and faithfully and to this extent there was a fiduciary relationship between them which prevented Kanungo from putting himself in a position where his duty and his own interest came in conflict and to obtain an advantage over Dastidar when he was bound to protect by giving timely information of the threat to his proprietary rights. Bejoy Ranjan Kanungo Vs. Khan Bahadur Khalilur Rahmwz (1968)20 DLR (SC) 286. S. 108(o)(p)—Lease—Restrictive covenant—Terms of lease prohibiting construction on leased plot of land without consent of lessor— Lessor cannot unreasonably withhold sanction of proposed alteration which constitutes improvement. Haroon E. H. Jaffer Vs. Sind Industrial Trading Estate Ltd., (1969) 21 PLD (Karachi) 227. S. 109—Lessor transfers the property leased, rights and liabilities of the lessor. Section 109 of the T. P. Act provides that if the lessor transfers the property leased, or any part thereof or any part of his interest therein the transferee in the absence of a contract to the contrary shall possess all the rights, and if the lessee so elects subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it. 1952 PLR (Lah) 21. S. 110—Computation of period of a lease—Duration of the lease and its determination. The section provides for computation of period of a lease in order to find out duration of the lease and its determination. It nowhere refers to any lease which is to conic into effect in a future date but only refers to a lease already in existence nor does it provide that in case of an agreement where date of commencement of a lease is not mentioned it will be assumed that the date would be the date of execution of the lease. Bhagabat Ranjan Das Vs. Sidheswar Pakrashi (1957) 9DLR 533. —When there is no mention of the date of commencement of a lease: An agreement for lease is not an instrument of lease but it is a contract to bring a lease into being in future. If there is no mention of the date of commencement of a lease in the contract, either expressly or impliedly, section 110 would not fill up the gap. Ibid. —The expression ‘time limited’ is not applicable to a monthly tenancy. The words “time limited” in sec. 110 of the Transfer of Property Act indicate that this provision will apply only to a lease of immoveable property where the lease is for a limited period and the period is expressed and in no other case. A monthly tenancy is not for a limited period, but for an indefinite time subject to termination of the tenancy at the option of the lessee or the lessor. Provisions of section 110 of the Transfer of Property Act has no application in computing the period of a monthly tenancy—and in monthly tenancy date of commencement should not be excluded but be included. M. Salim Vs. Shaikh Abdul Latif (1962)14 DLR 186. S. 111—Mortgagee’s interest in the mortgaged property subsists so long as the mortgagor has not been paid off—Any derivative title from the mortgagee ceases to exist with the extinction of mortgagee’s right in the property. Hasina Begum Vs. Haji Md. Ekramulla (1982) 34 DLR 116. —Interest as lessor is coterminous with the mortgagee’s interest. Ibid. S. 111(c)—of the Transfer of Property Act provides that a lease of immovable property determines where the interest of the lessor in the property terminates on or his power to dispose of the same extends only to the happening of any event by the happening of such event. Ibid. S. 111, (d)—Doctrine of merger The doctrine of merger contained in section 111 is subject to section 2(c) which makes it inapplicable to leases created before the Act came in force. Tajim Ali Vs. Saijuddin Khan (1954) 6 DLR 25. —Merger of by operation of law and intention of parties. But this does not mean that there cannot be any merger where the Act does not apply. If the Act does not apply there cannot be any merger by operation of law, i. e., by the union of the subordinate and superior interest in the hands of the same person. Ibid. —In such a case the question whether there was a merger or not depends upon the intention of the parties. It is open to the person, in whose hands the two interest unite, to keep them apart or to sink the subordinate into the superior interest. Ibid. S. 111(g)—Unauthorized alteration. An unauthorized alteration of the lease-hold premises by the lessee does not Constitute forfeiture within the meaning of section 111 (g) of the Transfer of Property Act. 2 PLR (Dac) 457. —Tenant’s assertion of higher status of the tenanted premises when does not always operate as forfeiture of his tenancy right. If a tenant does not deny his liability to pay rent but asserts a higher status as a lessee than what is admitted by the landlord, such an assertion does not amount to denial of the landlord’s title, nor of the setting up of a title by the defendant in himself and therefore, that does not operate as forfeiture of his tenancy right. Abdul Majid Mia Vs. MW. Nabiruddin Pramanik (1970)22 DLR (SC) 360. S. 111(g)(2)—Penalty of forfeiture is incurred only after the defendant has ivpudiatcd the relationship of the landlord and tenant which can possibly happen (in a suit where the landlord sought ejectment of the defendant on the ground of the latter being a tenant under him) after, and not before, the defendant has filed his written statement denying the asserted relationship—As this stage of filing WS comes after the filing of the plaint, the plaintiff, perforce, is under legal obligation, if he wants to eject the tenant under section 106 of the TP Act, to serve notice as required by section 106 of the Act—Denial by the tenant in the WS may be availed of in a subsequent Suit .or other purpose. Ahmed Hossain Choudhury Vs. Musammat Zakia Khatun (1968) 20 DLR 578. S. 111(h)—Death of the original tenant On the death of the original tenant the tenancy devolves on the heirs and can only he terminated by a notice to quit. Gouri Bala Pal Vs. Kunja Lal Saha. (1960)12 DLR 37. S. 116—Holding over—Tenants remain in possession of the lease-hold property. The provisions of section 116 of the Transfer of- Property Act arc applicable where the tenant remains in possession of the lease-hold property after the determination of the lease granted to the tenant and his continuing in possession is assented to by the landlord. A tenant who surrenders does not come within the meaning of the words “remains in possession” of this section. Aswini Kumar Poddar Vs. Taraj Ch. Rajbangshi (1954)6 DLR 652. —Tenants by holding over. Defendants’ lease of certain fisheries under the plaintiffs terminated in 1341 B. S., but they Continued their possession even thereafter. Plaintiff brought suit for rent against the defendants for the year 1342 which was decreed. In 1346 plaintiff granted a lease of the fisheries to a third party who failed to secure possession thereof from the defendants. Plaintiffs thereupon brought a suit for rent for the year 1346 to 1349 (with alternative prayer for damages for use and occupation during the period in suit). The defense was the denial of plaintiff’s title to the fisheries. Held: Plaintiff is entitled to get a decree for rent as, under section 116, defendants would be held to be tenants under plaintiff by holding over after the termination of the lease in 1341 under the same terms and conditions. Almas Ullah Vs. Srish Ch. Dam. (1951) 3 DLR 526. —Lessor ‘otherwise assents to his continuing in possession”—Suing for rent held to indicate assent on the part of landlord—Lease renewed from year to year or from month to month as the case may be. 1954 PLR (Lah) 829. —Lessee holding over after the period of lease becomes a tenant. An agreement to lease immovable property from year toy or for any term exceeding one year accompanied by delivery of possession, in the absence of a registered lease deed, is valid for one year and if the lessee continues in possession with the assent of the lessor, the lessee becomes a tenant by holding over under section 116 of the Transfer of Property Act. SM Lalita Roy Vs. Rafiqullah Khan (1966)18 DLR 107. —Tenancy right by holding over. The very fact that the tenant after expiry of the lease was allowed to remain in undisturbed possession of the land (non-agricultural land) for a long period (33 years in the present case) and that the holding comprising the suit land was allowed to stand in the municipal register in the name of the tenant without any protest from the landlord or the subsequent lessee who took lease of the land in tenure right clearly indicate that both the landlord and the subsequent lessee acquiesced in the holding over of the suit land by the tenant and after him by his heirs. Therefore, the tenant’s claim of tenancy right by holding over cannot be denied. Mastakim Ali Vs. Shafique Uddin Chowdhury (1970) 22 DLR (SC) 395. —Tenancy right—By open and actual possession for a long period in assertion of tenancy right the tenant acquires limited tenancy right. Auction-purchaser, in a rent execution case started by the landlord against the tenure-holder, acquires only the right, title and interest of the tenure- holder but the tenancy right of any person in the said land remains unaffected by such auction-purchase. Ibid. —Lessee holding over after the expiry of lease—Effect. When a person is in possession of certain land on the basis of lease for a fixed term and continues as such in possession even after the expiry of the lease period the position of that person is not that of a trespasser but of a tenant holding over under section 116 of the Transfer of Property Act. Banaras Co-operative housing Society Ltd. Vs. The Chairman, Karachi Development Authority (1970) 22 DLR (SC) 431. —Holding over Tenancy claimed by right of holding over— Claimant to conclusively prove it—Till this is done Government not called upon to prove compliance with Chapter V of Acquisition Act (XXVIII of 1951). Province of East Pakistan Vs. Nakuldas Mirdha (1968)20 DLR 769. S. 117—Section 117 excludes only agricultural lease. There is no indication in section 129 restricting its application only to a particular class of las, that is, non-agricultural land, as section 23 of the Non-Agricultural Tenancy Act, 1943 has provided. Section 117 of the Transfer of Property Act excludes from its operation only agricultural leases but not other dispositions. Jabed Ali Vs. Abu Shaikh (1983) 35 DLR (AD) 31. S. 1 18—If an exchange of lands is not effected by a registered instrument, that would not create any interest in favour of any party to the exchange as no valid title could be created on the basis of an oral exchange. Jabed Ali Bepari Vs. Abdul Bari Bepari (1967) 19 DLR 192. S. 119—Exchange of property— Provision of s. 119 applicable so long as property remains in hands of person to whom it had been given in exchange and not after he has parted with same in favour of third person—Exchange of lands between A & B—Exchange deed covenanting ‘if any loss is sustained by one party due to any factual or legal flaw in title to land, ckh would be liable for any loss sustained by the other”—Liability created by covenant, held, “personal” and not “running with land” exchanged—Provisions of s. 119, held, not attracted. Muhammad Shah Vs. Sher Muhammad, (1969) 21 PLD (Peshawar) 103. — —Ss. 123, 129— S. 129—Provision of section 129 is applicable to Muslims only when transferring property by gift. Jabed Ali Vs. Abu Shaikh, being dead his heirs: Md. Naimuddin and ors. (1983) 35 DLR (AD) 31. —S. 129 and s. 117—Section 129’s application is not to a particular class of lands. Ibid. S. 130—The true test for determining the nature of the claim sought to be assigned should be to see that the claim when it does accrue, partakes of true character of a beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant which can be recovered by an action. Kazi Abdul Ali Vs. Nurul Amin. (1955)7 DLR 406. S. 135A—Subrogation. Insurance company can be subrogated in the position of the insured and thereby become vested with the right of the latter to sue the person liable. Insurance company can be subrogated in the position of the insured and thereby become vested with the right of the latter to sue the person liable originally to the insured. Trans Ocreanic Steamship Vs. Issak Hazi Shakoor (1960)12 DLR 690. —In case of Marine Insurance the Insurer having paid up loss sustained by the assured and being thus subrogated to the position of the assured is entitled to sue tort-feasor ,i.e., the person who has caused the loss, in his own name. East & West Steamship Co. Vs. Queensland insurance Co. (1964)16 DLR (SC) 61. —Even after subrogation the insured can file a suit for recovery of damages. Though section 135A of the Transfer of Property Act only has given right to the insurer after subrogation to sue on his own behalf but that has not taken away the right of the insured to file a Suit for and on behalf of the insurer after getting compensation from the insurer. M. Ismail and Sons Vs. Trans Oceanic Steamship Co. Ltd. (1965)17 DLR 269. S. 136—It is not incumbent on the landlord to call and examine the postal peon who delivered the notice at the premises of the addressee. Haji Khabiruddin Ahmed Vs. Md. Salam Kabir (1982) 34 DLR (AD) 271. Secs. 161 & 164—Gift of property which are capable of division. Section 161 of the TI’ Act says that a gift of property which is capable of division to two or more persons without specifying their shares or without dividing it is invalid but it may be rendered valid if separate possession is taken by each donee of their respective portion of the property or if there is a subsequent arrangement between the donees with regard to the possession of the property. Section 164 further says 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. Monzurur Rahman Vs. Rema Tea Co. Ltd. (1981) 33 DLR 49.S. 2(c)—The doctrine of merger contained in section 111 of the Transfer of Property Act is subject to section 2(c) which makes it inapplicable to leases created before the Act came into force. Tajim Ali Vs. Saijuddin Khan (1954) 6 DLR 25. S. 3—”Actionable claim” includes existing debts payable in future or assignments of benefits under contracts for the supply of future goods. Kazi Abdul Ali Vs. Nurul Amin (1955) 7 DLR 406. —The words “conditional or contingent” mean that in case of debts or benefits accruing conditionally or contingently the immediate right to recover by action does not arise until the condition has been fulfilled or the contingency has occurred. Ibid. —The true test of determining the nature of the claim sought to be assigned should be to see that the claim when it does accrue partakes of the character of a debt or a beneficial interest in movable property not in the possession, either actual or constructive, of the claimant which can be recovered by an action. Ibid. —Beneficial interest in movable property—Right to claim the benefit of a contract. Right to claim the benefit of a contract for future delivery of goods sold is a beneficial interest in movable property’ within the definition of actionable claim and as such assignable. Ibid. —A entered into a contract with B to do certain works; he also entered into a contract with C under which C agrees to finance A in the execution of his contract works on condition that his advances would be a first charge on the bills due plus certain interest. Held: What A purported to assign was the right only to claim payment for works performed under the contract. This was not merely a right to sue for breach of contract but was an actionable claim. Ibid. —Attestation—Personal acknowledgement of signature: A personal acknowledgement of signature or mark as regards the execution of a deed by an executor within the meaning of the section may be either express or may even be inferred from conduct and it is sufficient if it is an acknowledgement of the execution of the deed. Hari Kissan Pandey Vs. Nageswari Debi (1956) 8 DLR 65. —Valid attestation: It is sufficient for valid attestation, if the attesting witnesses received acknowledgement from the executants of the deed that he put his signature or mark on the deed though the attesting witnesses themselves did not see him do it. Ibid. —Registration is notice when the document is compulsorily registrable. The doctrine of constructive notice by reason of registration applies only in the case of documents which are compulsorily registrable. Nagendra Chandra Vs. Purameswar Roy (1957) 9 DLR 476. Constructive notice —Notice of registration of sale deed is a constructive notice unless proof is given to show that there was no such notice. Ibid. —Whatever is notice enough to excite the attention of a man of ordinary prudence and called for further enquiry is, in equity, notice of all facts to the knowledge of which an enquiry suggested by such notice and prosecuted with due diligence would have led. Dula Mia Vs. Haji Md. Ibrahim (1956) 8 DLR 616. —Registration a constructive notice. Hochenaddi Sk. Vs. Esmail Sikdar (1957) 9 DLR 294. —A registered transfer amounts to a notice. Jamini Mosahar Vs. Md. Majibar Rahman (1953) 5 DLR 22. —The Transfer of Property Act not being in force in the region formerly known as the Punjab, the state of the law even after the 1927 amendment of section 3 remains the same, viz, that registration by itself does not amount to notice; the question of notice is one of fact to be determined on the circuinstances of each case. 1956 PLR (Lah) 1840. —Where licensee is permitted to erect permanent structure and thereafter allowed to continue to enjoy the same—License becomes irrevocable. A mud-wall hut is a permanent structure. Md. Ahsanullah Vs. Etwari Mia (1962) 14 DLR 776. —“A person is said to have notice”— When duty to make enquiry is imposed on purchaser of property having tenants on it. It was contended that if a tenant be in possession of land which is transferred it is the duty of the purchase& to make an enquiry from the tenant as to the nature and incidents of his title. Held: Immovable property in a town or an agricultural estate may have hundreds or even thousands of tenants on it. ft cannot be the duty of a person who purchases large property to make an inquiry from every one of the tenants of the property as to any agreements relating to the property which he may possess. A duty to make enquiry would arise only if there be some circumstance which puts the purchaser on enquiry. That tenants are in possession of the property which is purchased is not a fact which by itself will put the purchaser on enquiry, for this may be and will probably be the normal incident of the property purchased. Property may be in the possession of occupancy tenants, or it may consist of only the rent-receiving interest. Possession which is prima fade lawful does not call for an enquiry. If, however, a person was in possession without any apparent title, or if the explanation given about the title of such person by the vendor was unsatisfactory there would be good grounds for making further enquiry. The purchaser cannot be penalized unless he has somehow failed in his duty and his duty would not arise unless there is something in the circumstances which puts a person of ordinary prudence on enquiry. Abdur Razzak howlader Vs. Sk. Muhammad Shafi (1962) 14 DLR (SC) 119. —An interest created under an agreement for sale of an immovable property does not fall within the definition of “actionable claim.” “Actionable claim’ as defined in section. 3 of the Transfer of Property Act mean any claim to an unsecured debt or any beneficial interest in any movable property. Purchase of any interest in any actionable claim is prohibited under this section when the purchaser is a judge, lawyer or an officer of the Court. Ayaz Bahadur Vs. Abdus Sobhan (1978) 30 DLR 16. S. 6—Property of any kind may be transferred. A right to the reconveyance of immovable property, being ever so much more solid than a right of co-entry, should be treated as property. 1952 PLR (Lah.) 196. S. 6(a)—Transfer of expectancy Dispute relating to land between mother, stepmother and sister of last male owner on the one side and reversioner on the other—Parties not sure as to their respective shares—Compromise deed executed to avoid further litigation and to put an end to doubts—Deed, not invalid as transfer of expectancy. (1951) PLR (Lah.) 293. S. 35—Doctrine of election—The beneficiary must give effect to the instrument as a whole. The foundation of the doctrine of election is that a person taking benefit under an instrument must also bear the burden imposed by it and that he cannot take under and against the same instrument. It is, therefore, a breach of the general rule that no one may approbate or reprobate. The doctrine is based on intention to this extent that the law presumes that the author of an instrument intended to give effect to every part of it. Md. Kader Ali Vs. Lokman Hakim (1956)8DLR 112. S. 40—Sale by mortgagor of equity of redemption—Vendee covenanting to reconvey to vendor mortgagor partition of property after redemption—Vendor-mortgagor subsequently selling his right to reconvcyance also to vendee—Earlier sale successfully pre-empted—Pre-emptor selling his rights under the pre-emption decree to mortgagee— Covenant to recovery, though personal, held nevertheless, to be annexed co-ownership of land. 1952 PLR (Lah) 196. Ss. 40, 54 and 130—Even a benamder can maintain a suit for reconveyance in place of the principal. In some decisions it has been opined that by express or implied terms in the agreement between the parties this right may be limited within the family of the promisee. Therefore, in the present case in the absence of even such limitation in the agreement the right of rcconvcyancc was assignable and the same was rightly and validly assigned to the plaintiffs. As such the plaintiffs have locus standi to institute the Suit for specific performance of contract against the original vendee. Seru Mia. Vs. Fajilatennessa & ors. (1979) 31 DLR 159(160). —Right of reconveyance of immovable properly is an actionable claim in the vendor which can be transferred legally. Seru Mia Vs. Fajilatennessa & ors. (1979)31 DLR 159. —When section 130 of the Transfer of Property Act is read with sections 40 and 54 of that Act there remains no doubt that the right of reconveyance of immovable property though not an interest in the land, is an interest very much annexed to the ownership of the land; and this right is an actionable claim in the vendor which is transferable. Seru Mia Vs. Fajilatennessa & ors. (1979) 31 DLR 159. —A right under a contract of sale or contract of reconveyance, for all practical purposes, subject to the limitations put under sections 40 and 54 of the Transfer of Property Act, stands at par with “equitable estate” of the vendee under a contract of sale of immoveable property. This right though not an interest in the land, is very much annexed to the ownership of land and this ‘right’ is transferable, assignable. Seru Mia Vs. Fajilatennessa & ors. (1979) 31 DLR 159. S. 41—Transfer by ostensible owner. —The party relying on the section must establish facts which entitle him to the benefits of the rules laid down in the section. Nazir Ahmed Vs. Benoy Bhusan Saha (1956)8 DLR 159 (266 rt.h.col). —Real owner, when allows another to hold as the owner of an estate to recover from the purchaser of the pretended owner. Hamidulla Talukdar Vs. Muslim Khan (1956)8 DLR 606 (608 rt.h.col.) —Unless he cannot overthrow that the purchaser by showing either that he had directed notice or something which amounts to constructive notice of the real title, or that there existed circumstances which ought to have put him on an enquiry, which if unsecured would have led to a discovery of it, the real owner has no remedy against the purchaser. Habibullah Talukdar Vs. Muslim Khan (1956) 8 DLR 606 (608 rt.h.coi) —Transferee from the ostensible owner—When his interest protected. The husband continued to possess the suit land after settling it to his wife and subsequently the husband sold the same land to X. Section 41 of the Transfer of Property Act makes it incumbent on the transferee to act in good faith and to take reasonable care to ascertain that the transferor had power to make the transfer. It is obvious that the first step which the transferee is expected to take is to search the registration office to ascertain what transfers, if any, had been made by the transferor. The transferee is not entitled to the benefit of section 41 of the Transfer of Property Act if he or she fails to do so. Hassan Ali Vs. Azmauluddin (1962)14 DLR 392. Bonafide transferee—A bonafide purchaser for value without notice of the alleged contract for reconveyance is protected under. section 41 of the Transfer of Property Act. Tazal Haque Vs. Md. Affan (1965) 17 DLR 613. —Vendee—When may make enquiries—True owner’s possession—Vendee must enquire as to nature of possession— Protection under the section is lost by negligence. If there are no circumstances disclosing any reason for going behind the revenue entries, then the vendee is protected if he has bonafide acted on the entries appearing in the revenue records. The authorities do not seem to lay down any principle on the question of implied consent of the true owners; but it is clear that this would be a question to be decided on the facts of each case. It is also clear that the mere entry of the name of the ostensible owner in the revenue record would not by itself amount to implied consent on the part of the true owner, as required by section 41 of the Transfer of Property Act. Therefore, the fact that the true owners had all along been in possession of land was, a sufficiently strong circumstance for the vendees to be put on their guard and to require them to make further inquiries beyond the entries made in the revenue records. This they failed to do with the result that this requirement of section 41 was also not fulfilled by them. Ilahi Bakhsh Vs. Hassan Khan, PLD 1966 (W.P.) Lahore 654. (Anwarul Haq, J.) S.43—House by mistake transferred to M. when it was not in compensation pool—House subsequently included in pool—Transfer to M is validated by inclusion. The principle embodied in s.43 applies to transfer under Act XXVIII of 1958. When the property was put in earmarking due to a mistake in the record of the Deputy Rehabilitation Commissioner, the property did not form part of the compensation pool and by mistake it was transferred to M. Subsequently the property was released by the Central Government on 20.6.1960 and it became a part of the compensation pool. Thus the transfer already affected in favour of the petitioner became a valid transfer on the 20th of June 1960. Mumtaz Sultana Vs. Settlement & Rehab, Commissioner, PLD 1964 (W.P.) Lahore 388 (Rizvi, J). —Transferor having doubtful title at the time of transfer—Interest acquired subsequently passes to transferee— Principle of feeding the estoppel. Under s.43 a transfer by a person of property which he represents and which he is entitled to transfer, but in which his title is doubtful or lacking, will operate on any interest which he may acquire subsequent to the transfer in that property so that the transferee becomes the owner of that interest. Therefore, if at the time when the film was transferred by the transferor he did not have any rights in the film but the rights were acquired later on, they would pass to the transferee when they are so acquired. S.Sibtain Fazli Vs. Star Film Distributors PLD 1964 Suprem Court 337=1 6 DLR SC 198. (Kaikaus. J). Doctrine of feeding the grant by estoppel: The doctrine of feeding the grant by estoppel which appears as the solitary illustration to section 115 of the Evidence Act and in section 43 of the Transfer of Property Act is based on the ground that if a person, for value received, conveys what he does not own but subsequently he acquires the title, which he conveyed, then the transferee can enforce the conveyance against him. Ghulam Md. Shah Vs. Fateh Md. Shah (1955) 7 DLR (FC) 70. —Estoppel, application and doctrine of Section 115 of the Evidence Act is not the only section which deals with title by estoppel but there is one other section, namely, section 43 of the Transfer of Property Act which deals with the same thing. However, there is a distinguishing feature. According to section 43 of the Transfer of Property Act, erroneous representation is enough, but under section 115 of the Evidence Act it must be made intentionally and falsely. Where there is no proof of erroneous misrepresentation and the real state of things were known to both the parties, no question of estoppel arises. 6 PLR (Dac) 181. The section applies to case of fraudulent or erroneous representation made by transferor to transferee. 1951 PLR, (Lah) 307. —Transferor’s right to the property accruing to him subsequent to his date of transfer endures to the benefit of the transferee. Musammat Khaleda Razia Khan Vs. Mahtabuddin Chowdhury (1978) 30 DLR (SC) 27. —A nadabi-deed may be taken to be piece of evidence to strengthen the plaintiff’s claim of title on the principle of feeding the grant by estoppel. Ibid. —Feeding the estoppel—Ingredients of the principles of feeding the estoppel. What are required for application of the provision provided in s.43 regarding feeding the estoppel are (a) erroneous or fraudulent representation by a person, having had no title or having imperfect title to certain immovable property that be was authorized to transfer such property; (b) actual transfer of the said property by him for a consideration; Cc) subsequent acquisition of title or any interest by the said person in the said property. On the fulfillment of these conditions the transfer made by the unauthorized person would operate on the title or interest which has been acquired by the said person at the option of the transferee. Abu Saber Aziz Mahammad & ors. Vs. Govt. of Bangladesh & ors. (1979) 31 DLR (AD) 218. —It may he said to have been ultra vires of the Government Officer in the sense that the lands in question having been not the Government property, the Government officers were not authorized to transfer the same and no title accrued in favour of the plaintiffs on the basis of such transfer. But the Government having subsequently acquired title to the said transferred lands, there is no bar to the application of the law of feeding the estoppel. There is no statutory provision suspending the law of feeding the estoppel and creating a bar to the claim of the property on the basis of the said law. Ibid. —Schedule B lands being accretion to schedule A lands before the Government settled A schedule lands to the plaintiff the latter acquired no right or interest in B schedule lands by virtue of his getting A schedule lands from the Government. Ibid. S. 44—A member of an undivided family can maintain a suit for injunction restraining a stranger- purchaser of a portion of a joint property from taking possession of the property. Md. Habibullah Vs. Pranballav (1957)9 DLR 119. —Instead of availing himself of that right (that is, his bringing of a partition suit for a specific possession of share) if such purchaser tries to take forcible possession a co-sharer can bring a suit for injunction restraining such a transferee from entering into possession of the undivided dwelling house. Ibid. —With reference to the Partition Act it has been held that the term dwelling house’ includes not only the structure of the building but also adjacent buildings, curtilage, courtyard, garden or orchard and all that is necessary to the convenient occupation of the house; and that the phrase undivided family is not limited to Hindus but includes any group of persons related in blood who live in one house under one head, and that it applies if they are undivided qua the dwelling house which they own. The same construction applies to the words used in this section and it is not necessary that the family should have constantly lived in the dwelling house. Mulla’s Transfer of Property Act : (2nd edition) page 200. S. 46— “What is reasonable time” in each case depends upon the facts and the circumstance of the case. Fourteen years time to the parties when appears reasonable the Court will not hold otherwise. Abdul Quddus Vs. Anjuman Khatoon (1984) 36 DLR 312. —Where no time is fixed for performance of a contract it should be performed within reasonable time. Section 29 of the Contract Act provides that agreement, the meaning of which is not certain, or capable of being made certain, are void. None of the illustrations (a) to (1) of that section suggests that if the time for performance of contract is not fixed the contract would be void for uncertainty. On the other hand, section 46 of the Contract Act provides that where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time. Ibid. S. 47—Principle underlying section 47 has no application where transfer of the immovable property has been affected by person who had no such right at the time of transfer. Mst. Khaleda Rajia Khanun Vs. Mahtabuddin Chowdhury (1978) 30 DLR (SC) 27. S. 52—Lis pendens—Possession during the pendency of the suit by a party cannot alter the rights of the parties. The possession which a party to the suit obtains during the pendency of the suit instituted by the plaintiff cannot alter the rights of the parties in the suit, for those must be determined according to the position prevailing on the date of the institution of the suit. Hochenaddi Sk. Vs. Esmail Sikdar (1957) 9 DLR 294. —Where a transfer is hit by section 52 of the Transfer of Property Act, the transferee is not entitled to hold his title against a party to the suit sought to be affected by the transfer; for a suit for specific performance of a contract operates as liss pendens. Atar Ali Vs. Abed Ali (1953) 5 DLR 470. Lis pendens—The word “contentious” (which was in the section before the amending Act 20 of 1929) in section 52 of the Transfer of Property Act refers to the origin and nature of the plaintiff with reference to (his prosecution. The doctrine, therefore, becomes effective from the very moment of the institution of the bona fide suit which is in no way collusive. Sachindra Kumar Basu Vs. Sreenath Pal (1954) 6 DLR 550. —If a suit is dismissed for default and then it is restored, the order of restoration relates back and a transfer after dismissal and before restoration is subject to the doctrine of us pardons. Ibid. —The decree-holder in the mortgage decree having put the decree into execution, the judgment- debtors applied under section 36 of the Bengal Money Lenders Act to reopen the decree. The decree was re-opened and a new preliminary decree was passed making the decretal amount payable in several installments. Some time before the passing of this preliminary decree, the landlord auction-purchased the holding comprising the mortgage lands at a rentsale. The judgment-debtor having defaulted in payment of the installment dues a final decree was passed and the decree was thereafter put into execution. The landlord, who became the owner of the equity of redemption and was not made a party either to the preliminary decree or to the final decree, put in an objection under section 47, Civil Procedure Code saying that execution could not lie against him because he was not impleaded in the suit or the proceedings. Held: The landlord objector having purchased the property during the pendency of the suit, he could not be regarded as necessary party to the suit. He becomes interested in the equity of redemption during the pendency of the suit and hence the Doctrine of lis pendens under section 52 of the Transfer Property Act must operate as a bar to his plea. Debendra Ch. Saha Vs. Nabin (1955) 7 DLR 186. Involuntary alienation—It is now well settled that though section 52 itself may not apply to involuntary alienation nevertheless the principle of lis pendens applies to such alienation. Ibid. —A transfer pendente lite affecting the rights of the other parties to the suit is expressly barred by section 52 of the Transfer of Property Act. Aminul Huq Vs. SM Ibrahim (1955) 7DLR 535. —Principle of lis pendens applies in cases of involuntary alienation, though the said section may not apply. State Bank of Pakistan Vs. Khaledar Ma & others (1962) 14 DLR 734. Lis pendens—Purchase in a court-sale while a partition suit was pending—Purchaser’s purchase is hit by the doctrine of lis pendens. Sree Nath Paul vs. Sac hindra Kumar Bashu (1968) 20 DLR 97. —Transfer of land during the pendency of partition suit is hit by the doctrine of lis pendens. A partition Suit is a suit in which the right of a party in a property held jointly with others is determined and a Pew and exclusive right is created in favour of a party. Partition suit is a Suit contemplated in section 52 of the Transfer of Property Act. In this case the petitioners were inducted into the suit land during the pendency of the partition suit without the concurrence of other co-owners and the person who inducted them into the premises has not been given land which is possessed by the petitioners but he has been allotted a different saham. Co-sharer who has been allotted the saham which is in possession of petitioners is entitled to get possession of the saham allotted to him free from all encumbrances. To saddle him with encumbrances created during the litigation would render the principle of doctrine of lis pendens nugatory. Wajed Ali Vs. Sudhi Chandra Das (1968) 20 DLR 513. Principles of Lis pendens—Its application limited to immovable, property—In matters of conjugal relationship, it has no application. Nelly Zaman Vs. Giasuddin Khan (1982)34 DLR 221. —The word “transferred” in s. 52, TP Act, contemplate s transfer by sale, gift, mortgage, lease and exchange. The word ‘transferred’ means such transfers as are contemplated by the Transfer of Property Act such as, sales, gifts, mortgages, leases and exchanges. Md. Abdur Rouf and others Vs. Ahmuda Kkatun and others (1981) 33 DLR (AD) 323(324). —A transfer of the land in suit being the subject matter of the pending Suit is hit by the doctrine of (is pendens and, as such, such a transfer is not valid in law. And, consequently, such a transferee cannot apply under Or. 1, r. 10(2), CP Code to be impleaded as a party to the suit. Jamaluddin Vs. Rabeya Begum (1980)32 DLR 63. —Transfer of suit land by third party pending suit—Section does not apply. Where the suit land was transferred pending the Suit by a person who was not a party to the suit, the section does not apply to the case. Abdul Hakim Vs. Ali Muhammad PLD 1965 AK 1(BB). (Hamid, CJ). Ss. 52 and 2—Transfer governed by Muslim Law—Doctrine of us pendens does not apply—Donee under Muslim Law may transfer property pending suit for resumption of gift by donor. Section 2 of the Transfer of Property Act lies down that nothing in the Second Chapter of the Act shall be deemed to affect any rule of Muslim Law. Section 52 occurs in Chapter II of the Transfer of Property Act. It is clear, therefore, that if there is a rule of Muslim Law on the point under discussion here, then ,the principle embodied in section 52 of the Transfer of Property Act cannot be invoked. Therefore, where the donor acting under Muslim Law had delivered the possession of the property gifted to the donee, but subsequently he brought a s i for resumption of the property by revoking the gift— Held: The donees were competent to alienate the property in dispute during the pendency of the suit, as there was no order of the Court to the contrary. The gift could not, therefore: be revoked by the donor for the reason that the thing given had passed out of the donees’ possession by sale, a sale which was not hit by section 52 of the Transfer of Property Act. Ghulam Qadir Vs. Ghulam Husain, PLD 1965 (WP) Lahore 200 (Anwarul Haq). J). S. 52—Transfer of assets of firm pending suit for declaration that firm stands dissolved—Transferee acquires no right or interest in property. Where a suit was pending for a declaration that a firm had been dissolved and also for rendition of accounts and the property of the firm was transferred pending the suit. It was held that the transferee of the property did not acquire any right or interest in the property. Usman Vs. Haji Omer PLD 1966 (SC) 328 (Hamoodur Rahman, J.) S. 53A—Specific performance of the contract—Bonafide transferee. In a Suit for specific performance of a contract for sale or lease a subsequent ‘bona fide’ transferee for value without notice of original contract is an interested party; for a subsequent transferee for value, who has paid his money in good faith without notice of the original contract is entitled to hold his title against the plaintiff in a Suit for specific performance of the contract. Atar Ali Vs. Abed Ali (1953) 5 DLR 470. —Unregistered document. An unregistered document could be received in evidence in a Suit for specific performance. Dula Mia Vs. Haji Md. Ebrahim (1956)8 DLR 6(6. —The principle of part performance embodied in section 53A can only be pressed into service as a shield by a defendant to protect his possession of property which has been conveyed to him for consideration but of which the legal title has not vested in him owing to some formal defect like lack of registration of the instrument of transfer. Where the contract of transfer was ab initio void the principle has no application. 1951 PLR (Lah) 307. —An agreement of sale followed by possession No transfer of interest in the property. In an agreement of sale followed up by possession to the purchaser apart from the provisions of section 53A T.P.Act., the document itself does not constitute a transfer of any interest in the property. Enayet Hossain Vs. Member, Board of Revenue (1960)12 DLR 466. —A person who has taken possession under an unregistered lease which under section 107 of the Transfer of Property Act is required to be registered, can protect his possession on the plea of part performance under section 53A of the Act, provided he fulfils the conditions laid down therein. If a person has failed to pay the rents due it can not be said that he has fulfilled his part of the contract. Girindra Chandra Vs. Kumud Behari (1952)4 DLR 623. —Proviso to section 49 of the Registration Act allows an unregistered deed which is required to be registered to be used as evidence of a contract in a suit for specific performance or as evidence of part performance of a contract for the purpose of section 53A. Girindra Chandra Vs. Kumud Behari (1952) 4 DLR 623. —In a contract of sale when transferee paid the full consideration money and got possession of the disputed land, he is entitled to the protection of sec. 53A of the Transfer of Property Act and Art, 113 of the Limitation Act has no application to such a claim of the transferee. The right conferred by this section is available for a defendant to protect his possession. For the purpose of protecting his possession the section operates as a bar to the plaintiff asserting his title. In the facts of the present case the plaintiff is barred under section 53A from asserting his title and he is not entitled to get a declaration that he has his right and title in the disputed properties. Abdul Gani Khan Vs. Din Bandu Adhikari (1962) 14 DLR 663. —Property means the right in the property transferred and the remedy of the transferor is barred only with respect to the right that stands transferred by the deed. The provision of section 107 is not in conflict with that of section 53A of the Transfer of Property Act nor is the provision of section 17 of the Registration Act. Provision of section 53A does not create right or interest in violation of provision of section 107 and section 17, Registration Act. Abdullah Bhai Vs. Ahmad Din (1964) 16 DLR (SC) 169. —Section 53A of the Transfer of Property Act makes an exception in favour of the transferee in possession in respect of a document which requires registration. Section 49 of the Registration Act no doubt, provides that if a document, which is compulsorily registerable, is not registered, then such a document does not affect any rights in the property dealt with under such a document. But section 53A of the Transfer of Property Act makes an exception to this and provides that where a person obtains possession of or continues to remain in possession of a property under a document in writing which, though compulsorily registrable, has not been registered, then neither the person transferring the property nor anyone claiming under him shall be entitled to enforce against the transferee or any person claiming under him any right in respect of that property. Mst. Ghulam Sakhina Vs. Umar Bakhsh (1964) 16 DLR (SC) 38 —Deed (unregistered) of exchange, missing—Its terms sought to be proved by witnesses who never read its contents—Secondary evidence inadmissible. Mokim Mondal Vs. Ali Miah Pradhan (1966) 18 DLR 386. —Conditions for entitlement of the benefit of part performance. Under section 53A of the Transfer of Property Act a person in order to entitle himself to the benefit of the doctrine of part performance must show, inter alia, that the contract involved has been reduced to writing and signed by the person making the contract or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Mokim Mondal Vs. Ali Miah Pradhan (1966)18 DLR 386. —Agreement of purchase accompanied by possession. Agreement of purchase followed by possession in part performance of the contract for sale does not make the person in possession of such property as one in unlawful possession and therefore, such person has prima facie right over the property, if he can clearly establish his possession over the property. Kazalul Hussein Chowdhury Vs. Dy. Custodian, Enemy Property (1970) 22 DLR 345. —Protection under s.53A, Transfer of Property Act available to transferee both as plaintiff as well as defendant in suit by or against him to shield his title to property—Lessee in possession—Lease deed unregistered—Lessee, held, entitled to use unregistered lease as shield to prevent transferor from enforcing any right except those arising under such lease. The Pakistan Employees Co-operative Housing Society Ltd. (Karachi) Vs. Msi. Anwar Sultana (1969)21 PLD Karachi 474. —Relief obtainable under section 53A is not only available, by way of defense, to a defendant but can equally be invoked by a plaintiff where circumstances entitle him to claim the same. If the transferor, without taking recourse to law Courts, becomes aggressive and tries to dispossess the transferee in possession by force, it does not seem to be in consonance with good reason that the transferee in possession should not be able to prevent the transferor from committing aggression upon the property in question and protect his own possession by invoking the principle of section 53A of the Transfer of Property Act, by himself instituting a Suit as the plaintiff and obtaining the necessary restraint order against the would-be aggressor in the said suit. Mrs. June Ferguson Vs. Ameenur Rasheed Chaudhury (1973) 25 DLR 1. —Interest visualized in s.53A TP Act is neither a protected interest nor an encumbrance (within the meaning of these terms in sections 160 and 161 B.T. Act) and therefore an auction purchaser in a revenue sale gets the property free from any interests created under section 53A. Julfu Molla Vs. Noab Ali Sarkar (1975)27 DLR 441. —Right created u/s 53A—It is not an interest under clause (g) of section 160 of the Bengal Tenancy Act—Interest contemplated u/s 161 B.T. Act is a subordinate interest whereas under section 53A what the tenant intended to do was to transfer his whole interest. The kabala was not in limitation of the tenant’s interest but was a transfer of his entire interest. An interest under section 53A cannot be an encumbrance. Julfu Molla Vs. Noab Ali Sarkar (1975) 27 DLR 441. —Applicability of section 53A—Whether right under sec.53A is a legal right or an equitable or a contractual right. The question, which now arises is whether the Government of Bangladesh can completely ignore the written agreement under which the appellant entered into the possession of the property concerned on part payment of the consideration money. Under Article 4 of P0 16 of 1972 the industrial unit concerned vested in the Government which acquired the right to administer, control, manage and dispose of by transfer or otherwise the said properties in accordance with the provisions of said Order. Buxly Paints (Bangladesh) Ltd. Vs. Bangladesh (1979) 31 DLR (AD) 266. —Under the general law the Govt. which has stepped into the shoes of the Pakistani company, the original owner of the industrial unit, cannot exercise its right of possession as against the Bangladesh company by virtue of section 53A of the Transfer of Property Act which creates a positive bar to the exercise of any right including that of taking possession in view of the agreement for sale of the industrial unit between the Pakistani Company and the East Pakistani Company, in part performance of which the East Pakistan Company was inducted into possession and as such the Govt. is not entitled to interfere with the possession of the appellant Company in respect of the industrial unit in its possession. Buxly Paints (Bangladesh) Ltd. Vs. Bangladesh (1979) 31 DLR (AD) 266. —In Bangladesh when such right arising from part performance of a contract has been given a positive statutory shape in section 53A of the Transfer of Property Act, such right issues from a positive legislative enactment and is not founded merely on equity or a contract. So long as the agreement remains in force and the party in possession is agreeable to perform his part of the contract, his possession cannot be interfered with by a party to the said contract or any person claiming under the said party. Buxly Paints (Bangladesh) Ltd. Vs. Bangladesh (1979) 31 DLR (AD) 266. —Contract by part performance, must be evidenced by writing signed by the person who contracted to transfer. Mehar Khatun Vs. Sarat Kumar Kanungoe (1984)36 DLR (AD) 217. —Section 53A of Transfer of Property Act affords protection to a transferee in possession of immovable property as against the transferor or any person claiming under him when under a written contract the transferee in part performance of the contract takes possession of the property or any part thereof although the contract though required to be registered has not been registered or where there is an instrument of transfer, the transfer has not been completed in the manner prescribed thereof by the law for the time being in force. Joyanta Bijoy Chakraborty Vs. Gopesh Chandra Chakrabarty (1983) 35 DLR 319. —Defense under the section not set up in suit by ‘proforma’ defendant—Cannot raise plea during execution proceeding. Where the protection under s.53A was first raised as a defense in the execution proceedings by a proforma defendant in the suit. Held: If she had any such right, the same should have been set up as a defense in the suit itself. That not having been done, she is debarred from claiming the said protection now after a decree has been passed against her as well for specific performance. The decree of specific performance is conclusive and binding upon the appellant and she cannot be allowed now in the execution of the said decree to have the decree re-opened and the question reagitated. Birgis Jahan vs. Mohd. Hasan PLD 1964 Dacca 202 (DB). (Rahman, J). —Land sold by evacuee’s years before. partitions—Custodian can only claim balance of sale price—Cannot claim such property. Where the evacuees had sold land to the locals long before partition, the only right which the evacuee heirs of the vendor possess in the land in question was the right to receive the balance of the sale price, and not the right to dispossess the petitioners. It is only this right that must be deemed to have vested in The Custodian under section 7 of the Act and no more. Viewed in this light there is no conflict between section 53A of the Transfer of Property Act and the relevant provisions of Act XII of 1957. Therefore, the vendees have a right to keep the land and the Custodian can only claim the balance of the sale price. Muhammad Vs. Custodian of Evacuee Property, PLD 1962 (WP) Karachi 312 (DB). (Anwarul Haq, J.) —Oral agreement of transfer— Transferee in possession prior to suit but not in possession at time of suit—Benefit of section not available. The first essential requirement mentioned in the section is “where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with certainty’ In the present case, there is no writing at all signed by the transferor or on his behalf. The second requirement mentioned in the section is that “the transferee has in part-performance of the contract taken possession of the property or any part thereof or the transferee being already in possession, continues in possession in part-performance of the contract and has done some act in furtherance of the contract”. In the present case, although the defendant-appellant did come into possession of the disputed property for some time, yet at the time of the institution of the suit the appellant was admittedly out of possession. Such being the case even the second requirement laid down in the section is not fulfilled. For these reasons, section 53A is clearly not attracted to the case. Noor Mohd. Vs. Ghulam Masih Gill PLD 1965 (WP) Baghdad-ul-Jadid 1. (Anwarul Haq, J). —A plot obtained by exchange—Part performance of agreement of exchange— Benefit of s. 53A available to transferee. Where the plot was obtained in exchange for another plot and some structures were built on it in part-performance of the agreement of transfer. The transferee can enforce the specific performance of the agreement of transfer and take benefit of the provisions of s.53A. Usman Vs. Haji Omar PLD 1966 SC 328. (Hamoodur Rahman, J). —Scope—Section does not create rights for making a claim—Only provides defense for transferee. Section 53A of the Transfer of Property Act does not create a right for making a claim but only affords a defense against the transferor if he attempts to enforce a right other than one that is provided in the contract, in respect of the property of which the transferee is in possession. Anwar Sultana Vs. Pak. Co-op. housing Society Ltd., PLD 1964 (W.P.) Karachi 116 (Qadeeruddin,J.) —A sale of land by unregistered. deed without delivery of possession—Subsequent sale by registered deed—Subsequent sale has precedence. Where the previous sale of land was by an unregistered deed and possession was not delivered in consequence thereof and subsequently the same land was sold to another person by a registered deed. It was held that the subsequent sale has precedence over the previous sale. Pordil Khan Vs. Sufaid Gui. PLO 1965 (Pesh) 259. (Bashiruddin, J) —Scope—Gives protection to transferee—Does not transfer title to property in the absence of registration. All that section 53A, Transfer of Property Act, 1882 does is to protect the transferee against the transferor or any person claiming under him from enforcing any right in respect of the property notwithstanding the fact that the contract, though required to be registered, had not been registered or where there is an instrum net of transfer the same has not been completed in the manner prescribed thereof by the law for the time being in force. This protection is given to the transferee upon the fulfillment of the condition set Out in that section and upon the principle that equity looks on that as done which ought to & done. If the transferee is ready and willing to do all that he is required to do under the contract, it should not lie in the mouth of the transferor or any one flaming through him to plead absence of registration or compliance with other formalities to get out of his own obligation under the contract. This section nowhere professes to transfer the title to the purchaser. PT Co-op. Housing Society Ld. Vs. Manzoor Ahmed PLD 1961 (WP) Karachi 53 (Faruqui, J). —Transfer by unregistered deed where it should have been registered—Transferor cannot enforce any rights under the deed— Transferee may sue for specific performance of contract of sale. Under section 53A, a person who had made a transfer of some property by means of an unregistered deed, when under the law the transfer should have been made by means of a registered deed, is debarred from enforcing any right in respect of the property if the transferee has in part performance of the contract taken possession of it. When a transferee by means of a document which has not been registered, though under the law that document was compulsorily registerable, comes to Court as a plaintiff and bases his claim on part performance of the contract of transfer, he is using the part performance of the contract as a shield and not as a sword as his object is only to defend his own title and not to attack the tide of anyone else. Therefore the transferee can sue for the enforcement of a contract of sale even when it is not duly registered. Inayat Ullah Vs. Shah Muhammad PLD 1961 (WP) Lahore 372 =PLR 1961(2) WP 525(08) (Shabir, J). —The vendor cannot take shelter behind the doctrine embodied in section 53A of the Transfer of Property Act. That provision is intended for the benefit of vendees alone so as to protect them against the vendors. Manzoor Ahmad Vs. P & T Cooperative housing Society Ltd. PLD 1962 (WP) Karachi 476 (DB). (AnwarullIaq. J). —Where the transferee has made part payment of the consideration and is already in possession he is entitled to the protection granted by this section. Ghulam Hussain Vs. Ghulam Mohd, PLD 1964 BJ. 19 (UB). (Faruqui. J). S 54—A contract of re-conveyance of a property does not create any interest to the property— Rule against perpetuity has no application to an agreement when such agreement does not create any interest in the land. Abdul Quddus Vs. Anjuman Khatoon (1984)36 DLR 312. —Registration not enough to pass title. Where there is neither possession of the property alleged to have been sold, nor any proof of the payment of consideration mere registration of the sale-deed does not operate to pass title to the vendee. Ibrahim Vs. Sardar Ahmed (1955) 7 DLR (WP) 62. —It cannot be laid down a general rule that mere registration of an instrument “without reference to other circumstance operates to transfer the property. Ainuddin Vs. Samaddi Hajari (1955) 7 DLR 443. —Where a deed of sale collusively created to defeat the title of the defendant by ante-dating the same to a date prior to the date of the execution and registration of the defendant’s document, it cannot be said that mere registration has the effect of transferring title. Ainuddin Vs. Samaddi Hajari (1955) 7 DLR 443. —Although under section 54 of the Transfer of Property Act a condition of re-purchase does not create an interest or charge on the immovable property concerned, it is a benefit annexed to the ownership of land, and unless the contract is induced by considerations which are personal to the vendor, it is assignable. If it appears that the option is given as a matter of grace or favour it will be restricted to the vendor personally and will not be assignable but if it is not induced by any such consideration but in fact a part of the bargain the beneficial interest created by the contract is assignable. I PLR (,Dac) 349. —According to this section, sale is a transfer of ownership in exchange for a price not in exchange for land, and there is abundant authority for the view that “price” in this context means” money”, not anything else. 1952 PLR (Lah) 196. —Conveyance and contract of sale—Statements in a document which convert it into a sale-deed and not a contract of sale. Enayet Hossain Chowdhury Vs. Member, Board of Revenue (1960) 12 DLR 466. —If a vendor can convey a property without an instrument of sale-deed he can do it and can escape payment of stamp duty. Enayet Hussein Chowdhury Vs. Member Board of Revenue (1960)12 DLR 466. —An agreement for reconveyance of land is not a right in property. Abdus Sattar Mallik Vs. Yunus Mallik (1960) 12 DLR 849. —A sale may be complete even if the ingredients of section 54 not complied with. The mere failure of the parties to comply with the requirements of section 54 of the Transfer of Property Act as to the manner in which the transfer should be made cannot alter the nature of the transaction intended to be entered into between the vendor and the vendee or affect the pre-emptor’s right in respect of it. If the transaction amounts to a sale in fact then notwithstanding that it is not in the form prescribed by section 54 of the Transfer of Property Act the right of pre-emption will come into operation. Abdul Karim Vs. Fazal Muhammad Shah (1967) 19 DLR (SC) 477. —Agreement for sale of land binds the purchaser at Court sale with notice—the agreement for sale would bind the purchaser at a Court sale if he had notice of the agreement. Mohiuddin Mollah Vs. Province of East Pak. (1962)14 DLR (SC) 112. —A sale of immoveable property accompanied by an ekrarnama—In case of a sale of immoveable property accompanied by an ekrarnama, for the rcconvcyance of the same property to the vendor, a subsequent purchaser of the vendor’s right, he being the successor-in-interest, is entitled to enforce the right of reconveyance against the original vendee. Jalal Ahmed Vs. Thoraish Mia (1968) 20 DLR 80. —Subsequent registration of Kabalas without payment of consideration money for curing defects of earlier lease deeds cannot be called sale-deeds and as such pass no title. The plaintiff took bandabasta of the Suit property by registered lease deeds. But finding the lease deeds legally defective, the lessors subsequently transferred their interest in the property by registered Kabalas in favour of the plaintiff. Held: The Kabalas cannot be called sale-deeds and they pass no title. Makbul Ahmed Contractor Vs. Md. Idris (1969) 21 DLR 511. —‘Sale’ explained. Sale means a transfer for a fixed or ascertained price and it takes effect in the year in which the price is so fixed for till then there is no sale and the asset, unless destroyed, demolished or discarded, continues to be deemed to be in the use of the assesses. M/s. Chittagong Engineering & Electric Supply Co. Ltd. Vs. Income Tax Officer, (1970) 22 DLR (SC) 443. —Mere execution and registration of a sale-deed ipso facto does not pass title to the purchaser. Intention is consideration paramount and it can be inferred from circumstances. Mahar Ali Mathar. Vs. Daliluddin Chowkidar (1979) 31 DLR 392. —Right of reconveyance a transferable Right. A right to reconveyance cannot but be assignable, unless the terms of the contract manifest an intention to restrict the right to the transferor personally. Saukat Ali vs. Shamsun Bibi (1975) 27 DLR (SC) 59. —Sale of property worth more than Rs. 100—Not sale for purpose of preemption. Section 54 of the Transfer of Property Act, ‘1882, enjoins that sale of any immovable property worth more than Rs.100/- can be effected only by a registered deed and so, in a place where (he provisions of section 54 of the Act is in force, sale of immovable property worth more than Rs. 100/- not complying with the provision of the section is not a sale for purposes of suit for pre-emption. Jangi Vs. Jhanda PLD 1961 Baghdad-ut-Jadid 34 (DB). (Shabir,J). Ss. 54, 53—Oral transfer of land—No interest passed to transferee—Principle of part performance is not applicable. Where the transfer of land was affected by an oral agreement and it was sought to be enforced on the plea of part performance of sale. Held: The plea of part performance cannot have the effect of abrogating the provisions of the Registration Act or the Transfer of Property Act by creating an interest which under these Acts can only be created by a registered instrument. Sohna Vs. Allah Dad, PLD 1962 Baghdad-ul-Jadid 17 (DB) (Bashir Ahmad, J). The same was held in Manzoor Ahmed Vs. P & T Co-operative housing Society PLD 1962 Kar. 476 (DB). (Anwarul) Haq. J). S. 54—Oral sale of land—Right of pre-emption may be exercised in respect of sale. No doubt, a sale made in violation of the provisions of section 54 of the Transfer of Property Act would not be a valid sale, but if the law of preemption permits that a sale, which is otherwise complete, can be pre-empted and if the pre-emptor is prepared to take over (he defective title of the vendee, he cannot be prevented from doing so, simply because the vendor and the vendee have colluded with each other to deprive him of his rights. Whatever rights are possessed by the vendee, under such a defective sale, would go to the pre-emptor, if he succeeds, and if he is prepared to take that risk, it is not for the vendee to say that his title is defective and that, therefore, the defective title cannot be passed on to the pre-emptor. Gullan Vs. Mow. Ramzan PLD 1962 (WP) Baghdad-ul-Jadid 33 (DB). (Masud, J). S. 55—The principle embodied in section 55 regarding charge of the purchase money on the property sold in favour of the vendee, cannot be invoked in respect of an illegal contract which is void admit b. 1951 PLR (Lah) 307. —An agreement for sale is in fact a promise to transfer ownership of the land and if by the sale-deed the land in fact has not been transferred a breach of contract would appear to occur (he moment the sale deed is executed which has not the effect of transferring the promised title. 1953 PLR (Lah) 689. —Decree was for specific performance of contract for sale of land—Decree did not contain any direction for delivery of possession—The decree-holder is entitled to delivery of possession without such direction. Jahiruddin Ahmed Vs. Joynal Abedin Khan (1962)14 DLR 739. —“Document of title”—Income-tax clearance certificate and Custodian’s certificate—Are not such documents—Vendee not entitled to insist on “examining” such documents but only to be satisfied that vendor has obtained them. Abdul Hamid Vs. Abbas Bhai Abdul Hussain Sodawaterwala (1962)14 DLR (SC) 24. Ss. 55, 58—Sale with condition of repurchase—Repurchase can be enforced only by strict compliance with agreement. As a simple agreement for reconveyance the right of repurchase given to the plaintiff cannot but be a special privilege or a concession given to him and if the plaintiff wants to take advantage of that special privilege and concession he must strictly conform to the terms of the agreement. Abdur Rahman Vs. Raji Ranga Laskar PLD 1964 Dacca 230(DB)=PLJ? 1963 Dacca 496. (Chaudhury, J). S. 55(1)—Income-tax certificate stipulated to be produced by seller—Not produced—Buyer may rescind contract of sale. Where an agreement of sale of land provided for the securing of a no-objection certificate from the author ties by the seller as well as the making out of a marketable title, but the seller was unable to secure the certificate and unable thus to make out a marketable title. Held: That the seller had committed a breach of the terms of the agreement. P & T Co-op. Housing Society Lid. Vs. Manzoor Ahinad PLD 1961 (W.P) Karachi 53. (Faruqui, I). S. 55(2)—Apprehension that land agreed to be purchased is to be acquired by Development Authority—Purchasers may rescind contract. The purchasers were entitled to rescind the contract of sale in view of the threat of the acquisition of the lands in question. The plaintiffs would be entitled to take the attitude that they were not going to purchase the land which was under the cloud of requisition and that they were not going to wait and see what course these apprehended proceedings were going to lake. P & T Co-op. Housing Society Ltd. Vs. Manzoor Ahmad PLD 1961 (WP) Karachi 53.’ (Faruqul, J). —Where the seller not having title to the property sells the same, the buyer is entitled to recover the consideration money from the seller, and the question of limitation for the filing of the Suit to recover money in such a case does not arise. Jahura Bibi alias Bani Bibi Vs. Saijuddin Khalifa (1965)17 DLR 216. —Material defect in the title to the property—Repudiation of contract. An agreement was executed by the defendant for sale of a Certain property to the plaintiff. A certain amount was paid by the plaintiff as earnest money. The registration of the document for sale was to be completed by certain fixed date. In the meanwhile before the arrival of the date for the completion of the transaction, namely, the execution and registration, etc., the Government published a notice that a development scheme has been framed which proposed the acquisition of the property contracted to be sold to the plaintiff. The plaintiff thereupon refused to complete the sale on the ground that the notice referred to above constituted a material defect in the title to the property and demanded the return of the earnest money. Held: By the issue of the notice a material defect was created in the title which the vendor was capable of passing on the due date. Time being clearly of the essence of the contract, the purchaser was within his rights to rescind the contract at once, and the forfeiture of his earnest money was, therefore, not in accordance with the relevant stipulation in the contract. Associated hotels of India Ltd. Vs. RB Jodha Mal Kothalia (1954) 6 DLR (FC) 168. —The undertaking clearly indicates that the contract was subject to title being approved by the purchaser and that this was a term in the contract. Ibid. —Though the vendor had good title at the time of contract for sale he was not in a position to give the vendee at the time fixed for the completion of the sale, a tide free from reasonable doubt, owing to the material imperfection that set into it as a result of the notice by the Government for the acquisition of the property. The vendee was, therefore, entitled to repudiate the contract and claim back the earnest money. Ibid. —The matter is different where what the vendee desires is a piece of property, and in the result he stands to get a property different from what he contracted to get or believed that he would get under the contract. Where the vendee is faced with the prospect of being left with nothing but a sum of money as a result of his entering into the transaction, e.g. a sum by way of compensation assessed according to law the difference is even more marked. Ibid. —Covenant to indemnify is distinguishable from covenant of title. Former does not run with property sold, and benefit of it does not pass to subsequent transferees unless specially assigned— Remedy of subsequent transferee—By suit for money compensation against his own transferor. 1956 PLR (Lah) 1840. S. 55(4)—Part of sale price left with vendee to be paid to a previous mortgagee, remaining unpaid—Amount unpaid is part of consideration of sale and is a charge on property sold. 1955 PLR (Lah) 772. Ss. 55(4)(b)—Money decree creating a charge only on the suit property—Cannot be enforced for the purpose of selling the property. Where a decree is a money decree together with a declaration of charge in respect of the decrctal amount upon the plaint properties, unless a decree was passed specially for sale of the properties mere creation of charge does not, of itself, operate as a decree for its enforcement. Abdul Jubbar Vs. Abdul Aziz (1967) 19 DLR 7. —Applicability of the section—Clause (4)(b) of section 55 of the Transfer of Property Act is applicable where ownership of the Suit property has passed to the buyer before payment of the whole of the purchase money. Mahar Ali Matbar Vs. Daliluddin Chowkidar (1979)31 DLR 392. S.56—Marshalling by a subsequent purchaser. There is no reason why the equitable rule of marshalling by a subsequent purchaser embodied in section 56 of the Transfer of Property Act should not be extended to sales other than private sales. Mahtabuddin Vs. Nim Chandra Sachi (1952) 4 DLR 95. —Accordingly though a decree-holder has a right to have all the properties mortgaged to him put up for sale, it is entirely in the discretion of the Court to direct in which order the properties should be sold, if by such direction, the Court can give relief Co deserving parties without any prejudice to the interest of the decree-holder. Ibid. S. 58—Mortgage and paramount title. Where neither party objected in the Court’s going into the question of paramount title in a mortgage suit and it was contended in the High Court in second appeal that the Courts below committed an illegality in entering into the question of paramount title in a mortgage suit; Held: If it does not lead to confusion and inconvenience then the Courts arc entitled to go into the question of paramount title in a mortgage suit to satisfy the ends of justice. Held further: A mortgagee who is in possession of the land is in no way estopped from questioning title for the mortgagor as a paramount titleholder in the suit land. I PLR (Dat) 606. —The mortgage of a lease in any of the six forms specified in the Transfer of Property Act is not an absolute assignment and does not create privity of estate between the lessor and the mortgagee. Harados Dc Vs. Moazzam Hossain (1954) 6 DLR 220. —The prior mortgagee without impleading puisne mortgagee got decrees and purchased mortgaged property. The puisne mortgagee brought a suit on his mortgage, got decree and obtained possession through Court before the decrees and possession of the prior mortgagee. The purchaser of the mortgaged property in puisne mortgagee’s decree brought a suit for possession against the prior mortgagee’s purchase at a time when the prior mortgagee was barred by time. The prior mortgagee cannot claim that purchaser in the puisne mortgagee’s decree must redeem his prior mortgage. Where the prior mortgagee was not barred then he can claim, it not being necessary for prior mortgagee to bring a fresh suit. Md. Danai Vs. Syihet Loan and Banking Co. (1950) 2 DLR 9. —The true rule is that a mortgagee cannot by a mere assertion of his own or by any unilateral act of his, divest himself of his character as mortgagee and convert his possession as possession of an absolute owner. Messer Ali Matbar Vs. Jabbar Ali (1955) 7 DLR 103. —Sale with a condition of repurchase— Difference between a document as one of sale with a condition of repurchase and one of mortgage by conditional sale. The question is whether the document under reference purports to create a mortgage by conditional sale or sale with a condition of repurchase. In the margin of the document the word ‘kotkabala’ finds place and in the top margin of the document the word ‘haba-kabala’ occurs, But there are no such words in the text of the document which open with the expression. Held: If the document is read as a whole it can be found that by the rider clause in the document towards the end it was purported to be a sale with a condition of repurchase. If the clause of reconveyance is read as a whole it will appear that the power to get the property reconveyed was with the transferor and transferor alone because towards the beginning of the reconveyance clause it has been stated clearly that the transferor or his successor-in-interest could pay back the money but the right to have the property reconveyed was to the transferor himself. Such use of first person singular in the deed itself cannot give right to a dispute regarding the right to take reconveyance of the property by anyone other than the transferor himself. The language cannot be interpreted to mean that this right to take the reconveyance was given to the successor-in-interest of the transferor. It was thus a personal covenant of the transferor. Md. Affan Vs. Tazal Hoque (1975) 27 DLR 58. S. 58(b)—Mortgage security (by deposit of title deeds) furnished for advance of loans already made as well as for those to be made afterwards—All advances on this security shall be on the basis of the single mortgage already made and for limitation the time will run from the date of last advance. M/s. Tripura Modern Bank Ltd. Vs. Islam Khan (1971) 23 DLR 22. Simple and usufructuary mortgage—Mortgage—Difference between simple and usufructuary mortgage—Delivery of possession being an essential condition in case of usufructuary mortgage—S subsequent delivery of possession where the mortgage is a simple mortgage will not convert it into usufructuary mortgage. (1956) 8 DLR 599. S. 58(c)—Mortgage by conditional sale—Test to differentiate between mortgage and s1le. It appears that at the top of the document Ext. 3(a) there is mention of kot-kabala although in the body of the document it has been described as ???? ?????? ???????? ????????. It has also been stated in the document that the transferee would be entitled to mutate his name in the Sherista of the landlord and to enjoy the properties as his own with the right of inheritance and that he would be entitled to possess, settle, etc. In the last part of the document it has stated that in case the transferor or his heirs repay the consideration money, the sold land would be released. Thereafter again it has been stated that the document has a kabala. The word ‘khalash” is also quite prominent in the document. By reason of the confusion created as a result of use of the expressions like “khalash, kabala, kotkabala, sale,” it became essential to enter into the intention of the parties. In the instant case before us we find that the following elements arc in favour of the plaintiff: 1. inadequacy of price; 2. no time limit; 3. purchase of stamps and payment of registration costs by mortgagor (should be taken as indicative of mortgage); 4. stipulation of repurchase in the same document; and 5. use of the expression kot-kabala” in the very body of the document and not merely in the margin as in the other case. There are again certain other additional features, namely, that the transferor continued to pay rents. Then again mukti patra executed by the transferee shows that the document was a kot-kabala. In these circumstances, it must be held that the present is a case of mortgage by conditional sale. When the integrity of the mortgage has been split up by redemption of a part of it, partial redemption of the remaining part can be allowed. Tazel Hoque Vs. Md. Affan (1968) 20 DLR 282. —Sale or mortgage. Tests to ascertain whether a deed is a sale-deed or mortgage by conditional sale. Question whether a particular document is a mortgage or a sale has to be determined with reference— (1) To the terms of the document itself with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to the existing facts; (2) With reference to another fact viz time elapsed from the time when the bargain was made between the parties to the time when the present suit was instituted; (3) The tests for determination of the question are not the same in this country as in England; (4) The applicability of Bulter’s test; (5) The court must find the substance behind the form. Girish Ch. Roy Vs. Hassan Mia (1950) 2 DLR 290. —In constructing a document the following recitals in the document should be taken in-to consideration (i) If within the period fixed the executants do not redeem the Kot then the absolute maliki right shall accrue to the recipients; (ii) If the document begins and also ends with word kot-kabala and there is no such word as is found usually in a sale deed “bikray kabala” or kabala. (iii) The mere fact that the period mentioned is a short one is not conclusive to show that the transaction is a sale. (a) The fact that the recipients of the documents bear the cost of registration is not sufficient alone to convert a transaction into a sale. (b) The fact that there is no stipulation for payment of interest is also of no avail to convert the transaction into a sale. Girish Ch. Roy Vs. Hassan Mia (1950)2 DLR 290. Sale or mortgage—A sale with a condition of repurchase is not a mortgage. The distinction between a sale and a mortgage is one of intention. Abdul Hafiz Chowdhury Vs. Samer Ali (1952) 4 DLR 126. —Various tests which have been devised for determining whether the intention is to mortgage or to sell are; (i) the existence of a debt, (ii) the period of repayment—a short period being indicative of a sale and a long period of a mortgage; (iii) possession of the property, the continuance of the grantor in possession indicating a mortgage (iv) existence or otherwise of a stipulation for payment of interest or reconveyance, a stipulation for interest or repayment indicating mortgage. (v) adequacy or inadequacy of the consideration, a price below the true value indicating mortgage, (vi) presence or otherwise of the stipulation of conveyance in the document itself, the stipulation of reconveyance embodied in the deed prima facie indicating that the transaction is a mortgage; and (vii) purchase of stamps and payment of registration costs, the same if done by the transferee being indicative of a sale. Abdul Haflz Chowdhury Vs. Samer Ali (1952) 4 DLR 126. —The adequacy or inadequacy of the price is a test which must be cautiously applied. In deciding a question whether a transaction is a sale or a mortgage, the Court must find the substance behind the form. Ibid. —The adequacy or inadequacy of the price on transfer is a test which must be cautiously applied for, in ascertaining the amount of the consideration, the right of the repurchase, which must necessarily fetter the ownership of the buyer, is never left out of consideration and mere inadequacy of the price, unless it is very great, is not, therefore, a safe test. It is also now well-established from decided cases that a longer period for reconveyance indicates a mortgage, while a short period indicates a sale. Abdul Majid Vs. Serajuddin (1952) 4 DLR 478. —In absence of a stipulation that the recipient will have to reconvey the disputed property in the same state and condition as it was taken from the vendors at the date of the sale, the agreement is a mere personal covenant and cannot convert a sale to one of mortgage by conditional sale. Ibid. —Embodiment in the document of sale of the condition of repurchase as provided for in the new proviso to clause (c) of section 58 is not a decisive test. The effect of the proviso is that if the condition of repurchase is not embodied in the document, the transaction will not be regarded as a mortgage but it does not follow that if the condition is embodied in the document the transaction must necessarily be a mortgage. Abdul Haflz Chowdhury Vs. Samr All (1952) 4 DLR 126. Abdul Majid Vs. Serajuddin (1952)4 DLR 478. —If a document prima fade appears to be a mortgage, it is nevertheless open, to the other side to show that it was intended to be an out and out sale. Two documents, one a sale-deed followed by an agreement to re-transfer the property, do not constitute a mortgage unless it appears from the documents in the light of the surrounding circumstances that the parties intended the transaction to be a mortgage and in a suit for redemption instituted many years after the transaction, cogent reasons of such intention are necessary. The fact that there are two documents instead of one does not make any difference. Chandra Kanta Howlader Vs. Rama Prasanna Ganguly. (1953)5 DLR 29. —Though the transaction may in fact have been a mortgage, yet, when the condition of re-sale is not embodied in the document that effects or purports to effect the sale, then the transaction cannot be treated as a mortgage. ‘The rule laid down in the proviso to clause(c) of section 58 is a rigid one and unless the stipulation regarding reconveyance is embodied in the document of sale, the transaction (entered into after the date on which the proviso was incorporated by the Amending Act of 1929). will not be treated as a mortgage, the intention of parties or the fact that the condition of repurchase was embodied in a separate document will be irrelevant. Principle laid down in the case of Chandra Kanta Howladar [(1953) 5 DLR 29)] held not applicable after the incorporation of the proviso. Abdus Sattar Mallik Vs. Yunus Mallik (1960) 12 DLR 849. —Condition embodied in the same document—prima fade mortgage by conditional sale. Proviso to section 58(c) of the Transfer of Property Act does not lay down any rule that if the condition is embodied in the same document, it shall be deemed to be a mortgage or there will be a presumption of a mortgage by conditional sale, shifting the onus on the other side to show that the transaction is an out and out sale. The most important tests by which to judge whether a transaction is a mortgage or out and out sale arc(a) existence of debt, (b) the period of payment, (c) the continuance of the grantor in possession, (d) stipulation for interest on repayment, (c) the value of the property in question. (1952) 2 DLR (Dac) 443. —Condition of repurchase or conditional sale. In order to determine whether the documents constituted are absolute sale with a condition of repurchase or a mortgage by conditional sale subsequent conduct of the parties can be taken into consideration when some of them are not representative-in- interest of the parties to the documents. Section 92 of the Evidence Act does not stand as bar to that. Chandra Kanta Howlader Vs. Rama Prasanna Ganguly (1953)5 DLR 29. —The expression “such payment” in section 58(c) means payment on a certain date. Ibid. —Sale—Out and out sale with another deed for reconveyance within a certain period of time executed simultaneously—Enforceable in law—Consideration is the mutually enforceable contract. Shyama Pada Singha Vs. Dhirendra N Bhadra (1957) 9 DLR 439. —Where the kabala and the ekramama were executed on the same day and at the same sitting, they formed contemporaneous agreements and the consideration for the ekrarnama was in part the execution of the kabala and the transfer of the lands thereby made. Ibid. —Clause (C) of section 58 applicable to a mortgage by conditional sale or similar mortgages—Suit for redemption of mortgage maintainable when money has been tendered and refused. The terms of section 58(c) of the Transfer of Property Act apply only to a mortgage by conditional sale or a mortgage of a similar nature and not to a sale or to a mortgage of any other kind, namely, a usufructuary mortgage. I hold that the aforesaid mortgages are not hit by the provisions of section 58(c) of the Transfer of Property Act. A person interested in the equity of redemption tendered the dues within the stipulated period but on refusal by the defendant to accept the same, they were sent by money orders, which again were refused by the latter. In this context, there has been a valid tender so as to give rise to a right to institute a suit for redemption by the plaintiffs. If the mortgage debt is paid, or a tender thereof is made, by any person interested in the equity of redemption, a mortgage suit can be instituted by any other person who has a right to the equity of redemption. Nabin Chandra Moral Vs. Lalit Mohan Das (1967) 19 DLR 338. —Sale or mortgage—Tests for determining—The following tests have been devised to determine whether the intention was to mortgage or to sell. (i) the existence of a debt; (ii) the period of repayment—a short period being indicative of a sale and a long period of a mortgage; (iii) Possession of the property, the continuance of the grantor in possession indicating a mortgage; (iv) existence or otherwise of a stipulation for interest on repayment indicating a mortgage; (v) adequacy or inadequacy of the consideration, as inadequate price indicating a mortgage; (vi) presence or otherwise of the stipulation of re-conveyance in the document itself, the stipulation of reconveyance embodied in the deed being prima facie an indication that the transaction is a mortgage; and (vii) purchase of stamps and payment or registration costs; the same, if done by the transferee, being indicative of a sale. Tazel Hossain Vs. Md. Affan (1965) 17 DLR 613. —Covenant for repurchase—Personal suit by heirs. Where the covenant for repurchase is personal the suit for re-conveyance at the instance of the heirs of the transferor is not maintainable. Ibid. —Mortgage by deposit of title deeds— When requires registration. A mortgage by deposit of title deeds does not require any writing and being an oral transaction is not affected by the Law of Registration. It is however usual in these transactions that such deposit of title deeds is accompanied by a memorandum in writing. The question which often arises is whether the writing was of such a character as to require registration. The decision of that question must necessarily turn upon the nature of the document itself though assistance may be had from the consideration of the surrounding circumstances. Begum Vs. Fatimabhai, PLD 1961 (WP) Karachi 537. (Faruqui. J). S. 58(d)—Under section 58(d), Transfer of Property Act a usufructuary mortgage creates a liability. Tasiruddin Sk. Vs. Asaruddin Mallik (1950) 2 DLR 55. —Usufructuary mortgage—Definition—Does not contain a personal obligation to pay debt. According to section 58(d) of the Transfer of Property Act, where the mortgagor delivers possession of the mortgaged property to the mortgagee and authorizes him to retain such possession until payment of the mortgage money and to receive the rents and profits accruing from the property in lieu of interest or in payment of mortgage money, or partly in lieu of interest and partly in lieu of mortgage money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee. The very definition of the expression “usufructuary mortgage” as given in section 58(d) of the Transfer of Property Act indicates that the mortgagor is not personally liable for payment of the mortgage debt. If such an obligation exists in a transaction of mortgage, the mortgage would be either a simple mortgage, an English mortgage, a mortgage by deposit of tide deeds or an anomalous mortgage. In all such cases, there must be an obligation by the mortgagor to pay the mortgage debt personally; but if no such obligation is created, the mortgage, without any doubt, would be a usufructuary mortgage. Khushi Mohd. Vs. Sultan Ali PLD 1962 (WP) Lahore 960 ‘Masud, I.) S. 58(f)—Equitable mortgage by deposit of title deeds—Ingredients which have to be established.—No such mortgage is created with mere deposit of title deeds for advances to be made in future. It is well-settled that in the case of a mortgage by delivery of title deeds, the debt must be proved, the deposit of title deeds has to be established and the intention that the tide deeds deposited was as a security for the rent should be made out. It is also established on authorities that a mortgage by delivery of tide deeds is not created when the deeds arc deposited before any money is advanced with a view to prepare a future mortgage, and there is no express agreement that they shall stand as security for future advances. Tide deeds may be deposited under an oral agreement to cover present and future advance. Subha Karam Vs. State Bank of Pakistan (7962) 14 DLR 193. —Mortgage by deposit of title deeds with intent to create a security thereon—Letters showing deposit of title-deeds unless create a relationship between the parties in present do not require registration. Where it is found that letters showed the deposit of title-deed in the past registration not necessary and are admissible in evidence. United Bank of India Ltd. Vs. Azirannessa Bewa (1965) 17 DLR (SC) 169. Mortgage by deposit of title deeds— Memorandum of deposit of title deeds purporting to create in present interest in property in favour of plaintiff—Such writing constitutes contract of mortgage and not mere record of completed transaction, and is compulsorily registrable—Such writing, in absence of registration, held, not only inadmissible in evidence but also does not create any mortgage— Deposit of title deeds not independent of such writing—No right or interest, in circumstances, held, could be created in property even by deposit of title deeds. Messrs. Eagle Star Insurance Co. Ltd. Vs. Messrs Usman Sons Ltd. (1969) 21 PLD (Kar) 123. —Equitable mortgage—Extract from record-of-rights—Not a title deed—Cannot create equitable mortgage. The extract from the record-of-rights cannot at all be treated as a title deed, because of conveyance of the land no property in the extract, which can be obtained by any person from the survey office on payment of requisite fee, can be said to pass to the purchaser. Ibid. —Equitable mortgage—Mortgage not proved in favour of plaintiff for want of registration of memoranduin of deposit of title-deeds—-Advance of loan and receipt thereof, however, not denied by defendant-plaintiff, in circumstances, held, entitled to money decree. Ibid. S. 59A—Under Section 59A of the Act the heirs of a mortgagee are entitled to recover payment of the mortgage debt and enforce the mortgage in a court of law just as much as the original mortgagee. Abdus Sattar Howladar Vs. Afeluddin Chokdar (1952)4 DLR 89. S. 60—A co-mortgagor by redeeming the mortgage in full, cannot be held by his own action to have split up the integrity of the mortgage giving a right of piece-meal redemption to the other mortgagors. There is only one condition in which the integrity of the mortgage can be said to be split up and that is provided for under section 60 of the Act, and that case is where a mortgagee has acquired the share of the mortgagor 55 CWN (3 DR) 15. Redemption, equity of— Rights available to the holder of the equity of redemption, when such equity of redemption is entirely unrepresented in a suit, (i) in the case of simple mortgage, and (ii) in the case of a puisne mortgage. Hohenaddin Shaikh Vs. Esmail Sikdar (1957) 9 DLR 294. —Where the equity of redemption was entirely unrepresented, in other words, where the holder of the equity of redemption was not made a party in a mortgage suit, neither the decree nor the sale in execution of the decree in such a suit would affect the rights of the holder of the equity of redemption. Rights which arc available to the holder of an equity of redemption are as follows: Right of redemption—Extension of time In the case of a simple mortgage, the mortgagor even after the mortgage retains in himself (a) right to redeem the mortgage property and (b) a right to the physical possession and enjoyment of the property; If the equity of redemption is unrepresented in a suit, then these two rights remain vested in the holder of such equity of redemption and his right to redeem the property and to remain in physical possession thereof remains unaffected. Where there is nothing left to redeem, as for example, where the enforcement of the mortgage has become barred by limitation, the right to remain in possession must necessarily remain absolutely unaffected and free from the right of redemption. In the case of a puisn mortgagee, it is wrong to think that he has as such puisne mortgagee any right to possession, for, as a puisne mortgagee, his rights are (a) to redeem a prior mortgage and (b) to foreclose against the mortgagor and, unless such foreclosure has taken place in accordance with law, the equity of redemption, which includes the right to possession, remains with the mortgagor. Hohenaddin Shaikh Vs. Esmail Sikdar (1957) 9 DLR 294. —Until and unless preliminary decree is followed by an appropriate final decree, defendants are not debarred from redeeming the mortgage, if the court extends time limited in the preliminary decree, which the court is entitled to do under the law. Yad Ali Sk. Vs. Hazrat Ali Fakir (1954) 6 DLR 612. —The right of redemption is governed by principle of indivisibility of the mortgage security. Neither the mortgagor nor the mortgagee can have any relief inconsistent with this principle unless there is any special stipulation in the mortgage bond or any subsequent arrangement between all the parties concerned, authorizing a departure. In the absence of such stipulation or arrangements the owner of a fragment of the right of redemption cannot redeem share unless the mortgagee or all the mortgagees, where there are more mortgagees than one, has have acquired in whole or in part the share of a mortgagor. His right is a right to redeem the entire mortgage and he can enforce this right even though the mortgagee is willing to allow him to redeem his share only. Sm. Sabeda Khatun Vs. Nayeb Ali (1953)5 DLR 57. —Court’s power to set aside the order for delivery of possession. Where after the delivery of possession was taken by the mortgagee in executing a final decree for foreclosure, the mortgagor files objections to the exclusion under section 47 CPC, and asked the court, in exercise of its equitable jurisdiction, to set aside the order for delivery of possession and give sufficient time for payment of the money due under the decree. Held: The court had no power within its equitable jurisdiction to grant relief sought. The proviso to section 60 and the provisions of Section 91, Transfer of Property Act in themselves may not be conclusive, but the provisions of Or. 34, rr.2(c) and of the Code of Civil Procedure put the question beyond doubt. Sardar Autar Singh Vs. Sir Md. Ejaj Rasul Khan (1951)3 DLR 366. Principle of indivisibility of mortgage Mortgagee’s right in regard to whole mortgage debt-property sold for arrears of revenue. Lands referred to in sale papers constituting only portion of mortgage lands.—original mortgagee cannot claim any mortgage rights in the remaining lands. By a deed dated 25th May 1921A mortgages with possession of certain land in village S along with his other lands to B for Rs. 23,000. In 1935 land revenue in respect of the mortgaged land being in arrears, the mortgage rights of value of Rs. 23,000 in respect of the land in villages were put to by auction and the said rights were purchased by The sale was confirmed under section 92 of the Land Revenue Act, 1887 and a certificate to that effect was issued to C. Subsequently on 23rd August, 1939, B transferred his mortgage rights in the mortgage dated 25th May 1921 to D who sued to enforce rights: Held: As a result of revenues sale in 1935 the of B in the full sum of Rs. 23,000 were transferred to C and nothing was left in B that could pass to D by transfer on 23rd August 1939. It could not be contended that because the mortgage rights in respect of lands in village S only were referred to in the revenue sale, the rights of the mortgage B in respect of other lands were still outstanding in B, as B could not part with his mortgage rights in respect of the whole of the mortgage debt and yet retain any part of his rights in respect of some part of the mortgage land. The position is the same whether the mortgagee sells himself or as here his rights are sold by paramount authority. Golam Sarwar Khan Vs. Abdul Wahab Khan (1951)3 DLR (PC) 41. Ss. 60 and 61—Plaintiff mortgagors must sue to redeem the entire mortgage and not their own share only. One of the mortgagors alone subsequently mortgaging property to mortgagee plaintiff mortgagors not bound to redeem such subsequent mortgage along with the first. (1952) PLR (Lah) 509. S. 60—All persons interested in the equity of redemption need not be impleaded in a suit. Section 60 of the Transfer of Property Act does not require that all persons who have a right to the equity of redemption must be joined in a suit. In this case the suits were instituted by the original mortgagors against the original mortgagee, namely, the defendant. The original mortgagors also impleaded their transferee of a fraction of the mortgaged property as a co-plaintiff, the transfer having been made by the plaintiffs themselves. If a decree is given in favour of the plaintiffs, the mortgaged property would stand transferred to the plaintiffs. Niban Chandra Moral Vs. Lalit Mohan Das (1967) 19 DLR 338. —Purchase of a share in the equity of redemption whether in Court sale or by a private treaty cannot discharge mortgage debt fully. State Bank of Pakistan Vs. Khaledar Ma (1962) 14 DLR 734. —Tenancy right not affected because of a mortgage between the landlord (as mortgagor) and the tenant on the security of the tenanted land. The original tenancy right between landlord and tenant does not cease to exist merely on the ground the landlord mortgages the same property rented the tenant, if the mortgage money is later on paid by the landlord or a transferee of the landlord. The disappearance of mortgage with the payment of mortgage money by the mortgagor can in no way affect the tenancy right inasmuch as the tenancy right is an independent transaction which has no relationship with the part transaction. Noor Ahmed Vs. Md. Safi (1970) 22 DLR (WP) 39. Equity of redemption—When extinguished by mortgagor’s default. In this case the mortgagor defaulted to pay the arrears rent and the mortgagee was not under any obligation either in law or in contract to pay the arrear rent for which the land was sold out in the execution of a rent decree and the right of redemption of the mortgagor was extinguished. In Guari Shankor Sahu Vs. Sheotahag, AIR 1936 Patna 434 it was held that the rent sale extinguished the mortgagor’s equity of redemption when it was not proved to be fraudulent. The same view was followed in Fckua Mahso Vs. Babu Lal Sohu, AIR Patna 382. In the present case the plaintiff’s equity of redemption was extinguished for his own default to pay arrear rent and there is no evidence to show that the mortgaged property was collusively or fraudulently sold Out for any default of the mortgagee. In the present case the mortgagee or his heirs had not undertaken any obligation to pay arrear rent for which the land was sold in a rent sale and there was no evidence to show that the suit property was sold in the execution of a rent decree because of any default or any collusion of the mortgagee or their heirs. (Had the mortgaged property been purchased by defendant No.8 or had defendant No. 9 purchased the property in the benami of the heirs of Abdur Rashid or in collusion with them, then, by operation of section 90 of the Trusts Act, defendant Nos. I to 8 could be held responsible for holding the property for the benefit of the mortgagor and fiduciary relationship between the mortgagor and mortgagee would have subsisted and the suit would have been within time under Article 148 of the Limitation Act. Plaintiff’s right of redemption was extinguished long ago when the mortgaged property was sold in execution of a rent decree. Sukhendu Bikash De & anr. Vs. Nurul Islam & ors. (1979) 31 DLR 71. S. 63—Mortgagor liable to pay cost for provident when any of the tests under the section is fulfilled. State Bank of Pakistan Vs. Khaledar Ma. (1962)14 DLR 734. S. 64—A property can only be transferred by, a deed of conveyance—Contract of sale does not pass title to the property. Ashutosh Mali & ors. Vs. Shams unnahar & ors. (1981) 33 DLR 254. —Transfer does not date back to the date of agreement for sale. Date on which registration of the Kabala takes place would be date for determining the status of tenancy. Ibid. Sections 65 and 66—Mortgagor in possession, entitled to create leases A mortgagor in possession being the owner his property is not only entitled to create leases like patni and permanent leases but may do so irrespective of their effect upon the mortgage security, provided, only that they are not wasteful or destructive within the meaning of section 66 of the Transfer of Properly Act. The principle limiting the right of the mortgagor to alienate or create any interest with respect to the mortgaged property which is peculiar of English Law has no application to the mortgages in this country. - Since the mortgage money in a mortgage without possession can never be fixed the right of the mortgagor to create interest in the mortgaged property must depend on the slate of the mortgage account at the moment of the creation of such interest. Kali Prasad Chakraboruty Vs. Jitendra N Chowdhury (1952) 4 DLR 15. S. 67—Stipulation that if money is not paid within 15 years the purchaser shall have right to foreclose—Section 67 applies. Moulvi Ruhul Amin Vs. Bazal Huq & ors. (1979) 31 DLR 165. —Mortgagor—When he is barred to redeem the mortgaged property. Even in the case of mortgage by a conditional sale the mortgage does not automatically mature into sale. Section 67 of the Transfer of Property confers upon the mortgagee, any time after the mortgage money has become due to him and before a decree has been made for redemption of the mortgaged property, a right to obtain from the Court a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or a decree that the property be sold. Hasina Begum Vs. Haji Md. Ekramullah (1982) 34 DLR 116. —Right to redeem, in case of mortgage by conditional sale. If the mortgage is not foreclosed and the mortgagor’s right of redemption is not debarred. So far as the right to redeem is concerned, a mortgage by a conditional sale like othcr mortgages will be governed by provisions of the Transfer of Property Act. Hasina Begum Vs. Haji Md. Ekramullah (1982) 34 DLR 116. S.73—The object of section 73 of the Transfer of Property Act is only to protect a mortgagee whose security has been diminished. The section does not lay down that if a mortgaged property is sold owing to failure to pay arrears of revenue or other charges of a public nature or rent due in respect of such property the only remedy of a mortgagee is to claim payment of his money Out of any surplus of the sale-proceeds. The section permits a mortgagee to take recourse to this section only when his security has been diminished on account of sale as contemplated by section 73. Tripura Modern Bank Ltd. Vs. Khan Bahadur Khalilur Rahman (1973) 25 DLR (SC) 34. S. 76—Mortgagee in possession is to pay rent. Before the amendment of section 76(c) of the Transfer of Property Act the land as regards the liability of the mortgagee in possession for arrears of rent can be found in the provisions of sub-section (d) of section 65 of the Transfer of Property Act and that section was not amended by the Act 20 of 1929. That section says that the mortgagor is to pay rent if the mortgagee is not in possession. From this it can be legitimately deduced that the mortgagee in possession is to pay rent. Alip Chand Bibi Vs. Karamwlla (1954) 6 DLR 115. —If the mortgage of a leasehold property amounts to an assignment or transfer, the mortgagee would be liable for the rent to the landlord. Haradas Dc. Vs. Moazam Hossain (1954) 6 DLR 220. —A sale in execution of a decree for rent against a mortgagee in possession of a lease-hold property does not affect the lessee’s right. Haradas Dc. Vs. Moazzam Hossain (1954)6 DLR 220. S. 76(c)—Where a usufructuary mortgagee takes upon himself the burden of paying off the rent of the property under mortgage and makes the stipulation that if for any default in payment of rent the mortgage property is lost on account of sale for arrears of rent and purchased by the mortgagee or his successor-in-interest, that purchase will ensure to the benefit of the mortgagor, specially where the purchase takes place, in relation to a decree for arrears of rent for the period under mortgage. Safayat Ali Shah Vs. Annada Pr. Roy (1955) 7 DLR 222. —Under section 76(c) of the Transfer of Property Act, mortgagees are responsible for sale of the property in execution of a decree for arrears of rent even though they are for a period prior to the execution of the deed. (1954) 6DLR 115. —The mortgagee in possession of the mortgaged property is bound to pay the usual rent and protect the property from the sale. If the land is sold at a certificate sale for default in payment of rents by him, it is still open to redemption by mortgagor. 6 PLR (Dac) 210. S. 76(e)—The true rule is that a mortgagee cannot, by a mere assertion of his own or by any unilateral act of his, divest himself of his character as mortgagee and convert his possession as possession of an absolute owner. Mesar Ali Matbar Vs. Jabbar Ali (1955) 7 DLR 103. Ss. 76(h) and 77—The exception laid down in section 77 of the Transfer of Property Act is subject to the rule embodied in section 5 of the Assam Money Lenders (Amendment) Act, 1943 which limits die liability of the mortgagor to double the principal of the loan. Keramat Ullah Vs. Manindra Ch. Datta (1954) 6 DLR 45. —Refund of the excess paid. Where there has been excess payment over double the principal, the mortgagor on the application of the rule of accounting and refund laid down in section 76(h) of the Transfer of Property Act can ask for a refund of the excess paid whether or not there was any contract that the usufruct would be set off against interest or interest and a specified portion of the principal. Keramat Ullah Vs. Manindra Ch. Datta (1954) 6 DLR 45. Excess of the double of the principal In determining whether the money lender has received any sum in excess of the double of the principal of the original loan, amounts set off before the commencement of the amending Act are required to be taken into account. Keramat Ullah Vs. Manindra Ch. Dana (1954) 6 DLR 45. S. 82—Contribution to mortgage debt—Not against mortgagee. Section 82 applies to mortgagors inter se and gives one mortgagor a right to have the other property contribute to the discharge of the mortgage debt. This right cannot be availed of against mortgagee or auction purchaser. 54 CWN (DR-2) 287. S. 83—No deposit, when necessary. Section 83 has no application when by reason of section 26 GBT Act the property is free from liability. All that section 83 of the Transfer of Property Act says is that the amount remaining due on the mortgage may be deposited. If nothing is due, then no deposit is obviously called for. Sm. Sabeda Khatun Vs. Nayeb Ali (1953) 5 DLR 57. Ss. 83 and 84—Mortgage—Minor—Misrepresentation—Minor entering into mortgage fraudulently representing as to his age and subsequently bringing action for restitution of mortgaged property—Restitution of property to be ordered—Minor must, however, be made to refund consideration— Maxim He who seeks equity must do equity. Shah Pasand Khan Vs. Hasan (1969)21 PLD (Pesh) 306. S. 91A—Partial owner of the equity of redemption is entitled to redeem the whole mortgage. Arab Ali and others Vs. Abdul Khaleque Prodhania & ors. (1981)33DLR 11. S. 92—Subrogation—Insurance Company can be subrogated in the position of the insured and thereby become vested with the right of the latter to sue the person liable originally to the insured. Trans Oceanic Steamship Vs. Issak Haji Shakoor (1960) 12 DLR 690. ‘Redeemed in full’—Explained The words “redeemed in full” in section 92(4) do not mean that the subrogator should pay the entire amount himself. All that is required by the section is that the payment either of the entire sums Secured by the bond or such portion as may be outstanding at the time, provided it puts an end to the right to the mortgagee under the bond, and redeems the mortgage in full, will give rise to a right of subrogation. 55 CWN (3 DR) 15. S. 95—One of several mortgagors— What connotes Section 95 has by Act XX of 1929 been amended in such a way that sections 92 and 95 of the Act, as they now stand make it clear that the right of the co-mortgagor redeeming is the “same right as the mortgagee whose mortgage he redeems may have against the mortgagor” occurring in section 92 of the Act. “One of several mortgagors” in section 95 means one of several persons interested in the equity of redemption. 55 CWN (3 DR) 15. —S.100—Charge—Registration of document—creating a, when necessary— Unregistered document creating a charge where the amount involved is over Rs. 100/- not admissible. Abdur Razzak liowladar Vs. Sh. Muhammad Shaft (1960) 12 DLR 395. —Charge as distinguished from mortgage. A charge comes into existence when property of one person is by act of parties or operation of law made security for the payment of money to another and the transaction does not amount to mortgage. Abdur Razzak Howladar Vs. Sh. Muhammad Shaft (1962) 14 DLR (SC) 119. S. 101—Two mortgages held by same person—Merger of mortgages only when they are intended to be so treated. A merger of estates takes place when two estates held in the same legal right become united in the same person. Where the capacity in which a person in possession of the mortgagee’s right is something quite different from the capacity in which he is in possession of the equity of redemption, the mere fact that the two capacities are united in the same physical person cannot result in a merger. But merger can be held to have taken place only by proving that the person in whom both the rights vest had intended to treat both the rights as one, and not otherwise. Gula Jan Vs. Sahib Gul. PLD 1963 (WP) Peshawar 1 I0=PLR 1964(2) WP 900. (Daud, J). —Rule of merger. Section 101 deals only with mortgages and charges; it is inapplicable to a case where a right of rcconveyancc having been reserved by a vendor, that right is subsequently sold by the vendor to the vendee but this does not necessarily mean that where see- lion 101 does not apply, the rule of merger should be applied. The section as it states makes non- merger the rule, and consequently merger an exception. (1952) PLR (Lah) 196. S. 105—Tenant-at-will liable to pay compensation and not rent. The designation “tenant-at-will” though gives the impression of a tenant, it lacks the incidents of an ordinary tenancy, for, a tenant-at-will is not liable to pay any rent and there being no question of demise or lease in his case he is not liable for mesne profits or damages like a trespasser because his occupation is permissive; but he is liable to pay compensation for such USC and occupation. Rai Mohan Chowdhury Vs. Tejendra Lal Roy (1954) 6 DLR 577. —Nowhere in the Transfer of Property Act a tenant-at-will is recognized as a lessee. Section 105 recognizes only a lease for a certain time, express or implied, that is periodic leases or leases in perpetuity. Ibid. Sections 105 and 106—Purpose of the lease will determine whether a lease will be governed by the BT Act or the TP Act. Where the purpose for which a lease was granted was for residential and shop purposes the main fact that part of the lease-hold was agricultural wilt not take it out of the scope of the Transfer of Property Act, the principle being that the purpose of the lease will determine whether a lease will be governed by the BT Act or the TP Act. Ramani Mokan Mozumdar Vs. Jasodha KamarNath (1959)11 DLR 253. —Lease—The English rule that a conveyance to operate as a lease must reserve reversion to the lessor has no application to the Transfer of Property Act. Mohsin and Tahir Vs. Firoze Nana Ghuiam Ali (1958) 10 DLR (WP) 45. S. 105—Lease and license—Line of demarcation. The line of demarcation between a lease and a license will sometimes be very thin. A lease is a transfer of an interest in immovable property. Ownership of physical property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part of the rights of ownership. Abdullah Bhai Vs. Ahmad Din (1964) 16 DLR (SC) 169 —The right of ownership as well as the rights of which it is composed are rights in rem and not in personam and by the lease a right in rem is transferred to the lessee. On the other hand, a “license” will appear from its definition in section 52 of the Easements Act as merely a competence to do something which except for this permission would be unlawful. It does not confer any rights in physical property. There is in the case of a license only a personal agreement between the licensor and the licensee whereby the licensor agrees not to interfere with the doing of particular acts on property which is in his possession. No right in rem passes to the licensee. The Criterion for distinguishing between a lease and a license is simple, i.e., whether any right in immovable property itself, a right in rem, has passed to the person concerned. But the determination of this question may be difficult in the circumstances of a particular case. Where there is a document the evidence will have to be considered with due regard to the provisions of sections 91 and 92 of Evidence Act, 1872. Abdulah Bhai Vs Ahmed Din (1964) 16 DLR (SC) 169. —Government servant occupying Government quarter allotted to him is neither a licensee nor his possession is permissive like the possession of a tenant-at-will—He is a lessee from month to month. Md. Aboo Abdullah Vs. Province of East Pakistan (1970) 22 DLR 392. —Lease and license—Lease creates limited interest in immovable property which is both heritable and transferable—Licence does not create any interest in property; so it is neither heritable nor transferable. Mianjan Ali Vs. Province of East Pakistan (1970) 22 DLR 235. Ss. 105 and 106—The essential elements constituting a icase, arc the following; (a) the right must be one as to immovable property; (b) the right must be that of enjoyment of immovable property; (c) there must be a transfer of such right; (d) the right of transfer is an interest in property; (c) the transfer must be made for a certain time, express or implied, or in perpetuity; (1) the transfer must be one for consideration; (g) the consideration must be of the particular kind namely, premium or rent, as defined by the section, either or both of them. Abdus Sattar & Ors. Vs. Suresh Chandra Das (1980) 32 DLR (AD) 170. —Termination of a lease on quit notice—Right of occupation is a personal one and cannot create any interest in the land—This right ceases with the death of either of the parties and hence not heritable. Ibid. S. 106—Lease for a manufacturing purpose—Notice to quit A lease for the purpose of preparing ornaments being for a manufacturing purpose, is to be determined by 6 months notice under section 106 of the Transfer of Property Act. Mohsin and Tahir Vs. Firoze Nana Ghulam Aly (1958) 10 DLR (WP) 45. —Notice to quit—Monthly tenancy. When a monthly tenancy commenced from a particular month, it means that the tenancy commenced from the 1st date of that month to be terminated with the last date of every Bengali month. Notice was served on the 4th of Karuck, 1351 asking the tenant to quit by the last date of the month of Kartick, 1951. Held: The notice served was a valid and sufficient notice. Sri Nath Bhuiya Vs. Gopal Ch. Chattopadhyay (1955) 7 DLR 56 —Notice refused by addressee— Addresses fixed with knowledge of its contents. If a person refuses a notice, he should be affected with knowledge of it contents. If a letter reached the other party and was refused by him, he must be affected within the knowledge of the letter which he refused to read. If the defendant has minded to satisfy the court that he got no opportunity to get the letter, it was for him rather than for the plaintiff to call evidence to prove what he asks the court to accept. Byramji Hormosji Ghadialy Vs. Mst. Sarabai (1959) 11 DLR (WP) 165. Monthly tenant—Holding over, has an accruing interest during every month thereafter as a tenant. Under the Transfer of Property Act, a tenant holding any premises for a month has an accruing interest during every month thereafter springing out of the original contract and as parcel of it, and oral agreement of lease accompanied by delivery of possession is valid for the first month and thereafter the lessee continuing in possession with the assent of the lessor, expressed or implied, becomes a tenant by holding over under section 106 of the Transfer of Property Act. Therefore, a tenant holding such a tenancy has an interest for the month with an accruing interest during every month thereafter springing Out of the original contract and as parcel of it. Such a tenancy is also transferable if allowed under the terms of the lease and under the provisions of law. Gouri Bala Pal Vs. Kunja Lal Saha (1960) 12 DLR 37. —On the death of the original tenant the tenancy devolves on the heirs and can only be terminated by a notice to quit. Ibid. —A pucca building consisting of 3 rooms and the land on which the building stood and also the open space lying to the west of the building were let Out and the demised lease-hold is described as consisting of ‘niskar’ land, etc., and the ‘pucca building’ for a term of two years with the option of one renewal. The lessee failed to exercise the option of renewal and continued Lo hold the tenancy as monthly tenant. The plaintiffs determined the tenancy by 15 days’ notice to quit after the expiry of the month: Held: The notice to quit is valid, legal and sufficient; the tenancy being a monthly tenancy 15 days’ notice was quite sufficient. Faizur Rahman Vs. Jogendra Mohan Das (1951) 3 DLR 115. —An ex-tenant under East Bengal Nonagricultural Tenancy Act cannot claim the benefit of service of notice. Nihar Ranjan Pal Vs. Mst. Nurannessa Chowdhurani (1958) 10 DLR 472. —No notice to quit is necessary as against a sub-tenant. Sk. Md. Amir Ali Vs. Abdur Rahim (1957) 9 DLR 102. —Notice to quit—The other incident of the tenancy which is lacking in the case of a tenant-at- will is that a tenant-at-will is not entitled to any ejectment notice as in the case of other tenants and the landlord may file an ejectment Suit straight away without serving any notice of ejectment on him. If a suit has to be filed against him, Article 139 of the Limitation Act will not apply but Article 144 will apply and this latter Article also applies to a suit against a trespasser. Rai Mohan Chowdhury Vs. Tejendra Lal Roy (1954)6 DLR 577. —Monthly tenant—15 days’ notice. Where a non-agricultural land is held by a nonagricultural tenant as monthly tenant the provisions of section 106 of T.P.Act will apply and the tenant will be entitled to 15 days’ notice for the purpose of a suit for ejectment. Bengal River Service Ltd. Vs. Sree. Muralidhar Ray (1955) 7DLR 525. —The provisions in section 106 of the T.P.Act for 15 days notice expiring with the end of the month of the tenancy is one and the single rule of law and cannot be split up into two—one as to the length of the period of notice and the other terminating that period with the ending of the month of the tenancy. Abdus Sattar Vs. Syed Shaha Md. Hassan Ali Quaderi (1956)8 DLR 316. —The agreement was to the effect that three months notice will be required to be served on the tenant for vacating the premises. Held: The agreement about three months’ notice being contrary to section 106, these provisions about 3 months’ notice is to be taken from the date of service of notice and after the expiry of three months the tenancy will terminate. Ibid. —In terms of agreement a 3 months’ notice was served on 12.3.54 asking the tenant to vacate the house on the expiry of the 1st. day of July, 1954. Held: This is a valid compliance with the agreement between the parties. Section 106 TP Act has no application in this case. Ibid. —A notice to quit though not strictly accurate or consistent in its statements, may be effective, and should be construed not with a desire to find fault in the notice which would render it defective but on the principle than it is better for a thing to have the effect than be void. Ibid. —Plaintiffs are entitled to get a decree for rent as under section 116 of the Transfer of Property Act, defendants would be held to be tenant under plaintiffs by holding over after the termination of the lease. Settlement of a new lease in favour of a third party cannot affect defendants’ right which can only be terminated by a valid notice under section 106, Transfer of Property Act. Alimas Ullah Vs. Srish Ch. Dam (1951) 3 DLR 526; 1 PLR (Dac) 593. —In the absence of a valid notice to quit the defendants who are tenants by holding over arc liable to pay rent. Ibid. —Even supposing that the tenancy was terninated by a lease to a third party then also defendant, though having no lawful title, are tenants on sufferance and liable to pay rent. Ibid. —Notice to quit on or before a date, being the date on which tenancy expires is a good notice. In the case of a monthly tenancy where it does not appear from what date the tenancy commenced, a notice terminating the lease with the end of the month following is valid and legal. Satish Ch. Pal Vs. Mst. Mazidan Begum (1958) 10 DLR 271. —Notice need not contain the date of the commencement of the tenancy when evidence during trial clears the point. Monthly tenancy expires on the midnight of the 30th of each month. Ramani Mohan Mozumdar Vs. Joshodha Kr. Nath (1959) 11 DLR 253. —The lease in this case expired on the last day of the month. One months notice given on 3rd August, 1954, and received by the tenant on 8th August 1954, the regulating suit having been instituted on 13th November, 1954, was held in order, not only because it did not contravene section 106, but also because the suit had been instituted more than 3 months after notice ruling Out any possibility of prejudice on the score of the notice not having expired on the last day of the month of tenancy. 1956 PLR (Lah) 112. —Denial of the title of—Forfeiture. In a suit for ejectment by landlords the denial of the title of the plaintiff would in law result in the forfeiture of the right of the leasehold interest of the defendants. Lessees whose tenancy is terminated by notice under section 106 of the T.P. Act is estopped in an ejectment suit from setting up title subsequently acquired by them in the suit lands. Bayza Bibi Vs. Debendra Lal Roy (1950)2 DLR 360. —When the question is whether the lease was for dwelling purpose or manufacturing purpose.—Matters to be looked into. In order to decide whether a tenancy has been obtained for a manufacturing purpose, one must find the actual purpose for which the lease was obtained. If a lease of some premises was obtained for the purpose of dwelling and the said premises had been used for manufacturing purpose, it cannot be held that mere’ user of the building for manufacturing purpose would make the lease a lease for manufacturing purpose within the meaning of section 106 of the said Act. Conversely, in the absence of any other evidence to the contrary, a long user for a manufacturing purpose would constitute a good circumstantial evidence that the lease was obtained for such a purpose. Shaikh Mahmudur Rahman Vs. Amulya Kumar Sarker (1967) 19 DLR 743. —Quit notice—After the expiry of the lease period (which provided for 6 months’ notice) period of quit notice shall be as provided by section 106. AK Fazlul Huq Vs. Nibaran Chandra Saha (1967)19 DLR 901. —Notice to quit—Slight inaccuracies will not render the notice invalid. Nehar Ali Biswas Vs. Nazam Negar Rashida (1967)19 DLR 905. —Notice to quit should be interpreted liberally and not found illegal for slight inaccuracies. By the notice the plaintiff has directed the defendant to quit the premises ‘by the 31st December, 1960. It was contended that the word “by” has no legal meaning but its dictionary meaning is ‘during’ and accordingly the possession of a tenant of a premises during subsistence of the tenancy is a lawful one and as such the tenant could not have been asked to vacate during the subsistence of the tenancy. Held: The rule of construction of a notice to quit is to put upon it a liberal construction in order that it should not be defeated by slight inaccuracies on the date of the expiry of the notice. But at the same Lime the notice must be reasonably certain so that the recipient of it is not misled as to the intention of the notice-giver. Messers Memon Trading Co. Vs. Messrs Hajee Gaffar Fiajee Habib Janno (1965) 17 DLR 677. —Lease—Notice to vacate on or before a date being the date on which the lease terminates is a valid notice. The landlord served a notice on the tenant (a monthly tenant) on the 1st Bhadra under section 106 of the Transfer of Property Act to vacate the premise on or before the 1St day of Aswin next. It was contended that the notice was bad inasmuch as the defendant was asked to vacate on or before the 1st of Aswin although the lease would terminate by the mid-night of 1st of Aswin. Held: For the fact that by the notice the defendant was asked to vacate on or before the 1st day of Aswin, it cannot be held that the notice was bad. A notice to quit on or before a date being the date on which the tenancy expires is a good notice. Ahmadur Rahman Vs. Sheikh Mafazzal Hossain (1962) 14 DLR 826. —Presumption of due service of notice under the section. The question is, has the notice been served validly? It has been proved that it was sent by post to the address of the defendant and that it has come back to the plaintiff on refusal by defendant to accept service of the said notice. The postal cover under which the notice was sent bears the endorsement of the postal peon to the effect that it was refused. It is, therefore, clear that the appellate Court below has rightly held that the said tenancy was terminated by a good notice under section 106 of the Transfer of Property Act and that it has been properly served, as required by law. Sultan Ahmed Vs. Sayed Ahmed (1967) 19 DLR 42. —Suit for ejectment’ of tenant— Sufficiency of notice under section 106 T.P. Act determining tenancy in respect of suit premises belonging to the wakf estate in his personal capacity but he filed the suit as mutawalli of the wakf estate— Held: Notice so served is not valid, legal and sufficient and the suit filed on its basis must fail. Abdul Hafiz Vs. Syed Md. Kazem (1971)23 DLR 12. —Period of notice provided in section 106— Has no application when period of such notice is mutually agreed upon. Goalundo Industries Vs. Pakistan (1970) 22 DLR 349. —Termination of a tenancy by service of notice under section 106 of the Transfer of Property Act, does not entitle the Government to evict a tenant by the summary procedure of Act X of 1953. The petitioners who were monthly tenants under the Government had their lease of monthly tenancy terminated by service of notice under section 106 of the Transfer of Property Act by the Government. When on demand they refused to vacate the premises, they were sought to be summarily evicted by the application of the provisions of section 5 of the Act of 1953. The petitioners then moved the High Court under Art, 98 of the Constitution of Pakistan, 1962 on the ground that invoking the summary provisions of a different Act, namely, Act X of 1953 for evicting the petitioners was wholly unauthorized in law. Held: The petitioners as monthly tenants of the building who are not Government servants do not come within the mischief Act X of 1953 and therefore, not liable to be evicted under the provisions of the Act. Amin Medical hail Vs. Province of East Pakistan (1970) 22 DLR 555. —Printing and publishing business, not a manufacturing business—Type-foundry is, no doubt, a manufacturing business, but where it is just subsidiary to the printing business which is the principal business, such type-foundry cannot acquire the status of manufacturing business. Shamsher Nessa Sakeba Bwioo Vs. Ali Mohsenuddin Ahmed (1975) 27 DLR 643. —A wrong number given in the notice to quit issued under sec. 106 TP Act will not invalidate a suit for eviction, if the party had a clear conception of the actual subject of the suit, notwithstanding the wrong description. Fazilatunnessa Vs. Nowshad Ali (1977) 29 DLR 315. —Notice to quit is intended to afford an opportunity to the tenant to vacate the premises without resorting to any litigation and it is only when he refused to vacate that he can be evicted through due process of law. Ibid. —A liberal construction should be put on notice to quit. It is the duty of the court to put a liberal construction in order that the notice to quit is not defeated by any slight inaccuracy and the recipient is not misled as to the intention of the notice giver. Ibid. —Monthly tenancy cannot be terminated without notice u/s.106. In the absence of legal proof that a valid notice as required under section 106 of the Transfer of Property Act, terminating a monthly tenancy was served on the tenants, a suit for eviction of the tenant is not maintainable in law. Mir Deiwar Hossain Vs. Joynal Abedin (1977) 29 DLR 214. —If a tenancy is a monthly tenancy the month must either be referable to a calendar month or fixed by contract. Ibid. —Premises at the inception taken for use as a godown—Subsequent conversion of it without the landlord’s consent for manufacturing purpose will not change its original character. Hayatunnessa Vs. Abdur Rahman (J974) 26 DLR 342. —In the absence of a contract or local usage a lease of immovable property for agricultural or manufacturing purpose is a yearly lease and 6 months notice is necessary. All other leases are to be deemed as leases from month to month terminable with 15 - days’ notice. Ibid. —The tenancy (which was for manufacturing purpose) commenced on 1st Falgoon, 1362 B.S.— Notice to quit the premises by 31st Chaitra, 1382 was served u/s. 106 T.P. Act giving 9 months’ time to vacate—Defense contention was that the termination of the tenancy should coincide with the year of tenancy. Here it should be on 31st. March, 1382 (i.e. last day of the year of tenancy) Held: In place of 6 months’ notice u/S. 106 TP Act the defendant in this case has got 9 months’ time to quit and as such notice to quit is valid in law. Iuman Mia Vs. Zainab Bibi, wife of Haji Abdus Salam (1983) 35 DLR 351. —Notice received by the addressee’s wife’s brother (who had been in the service of the addressee) on the addressee’s premises is a proper service as contemplated u/s 106, though he may not be regarded as a member of the family. Hajee Khabiruddin Ahmed Vs. Md. Salam Kabir (1982) 34 DLR (AD) 271. —Plaintiff was the tenant of the shop room under the Pourashava who transferred the same to defendant 4 with notice to the plaintiff and instructing him at the same time to attorn to defendant 4 as his landlord failing which he was required to vacate the premises—Plaintiff was further asked to clear off arrears to the Pourashava—Plaintiff did neither— Notice to the plaintiff by the Pourashava is a notice u/s.106 and on his failure to vacate the premises he was liable to be evicted. Md. Zahir Abdullah Khan @ Zahir Abdullah Khan Vs. Abdul Latif (1983) 35 DLR (AD) 354. —Tenancy created on payment of rent—A monthly tenancy is terminable by 15 days’ notice. The Bangladesh Premises Rent Control Ordinance says, a tenant means a person by whom, or on whose account, rent is payable for any premises, and includes a legal representative as defined in the Code of Civil Procedure, and a person continuing in possession after the termination of a tenancy in his favour. A glance at the definition along with the definition of ‘landlord’, which is nothing but the counterpart of the tenant, indicates that the definition was inserted in the Ordinance only to emphasize the tenant’s liability to pay rent and nothing more, and this meaning becomes clear when we advert to the second half of the definition of ‘tenant’, which says that it also included a person continuing in possession after the termination of his tenancy. Abdus Satar Vs. Suresh Ch. Das (1980)32 DLR (AD) 170. —Tenancy-at-will creates a personal relation between the original landlord and the tenant and is terminable by the death of either—Lease is created u/s. 106 TP Act. Ibid. —Terminating a tenancy from year to year—How to be counted. Whether the notice period of six months as contemplated in the law for terminating a tenancy from year to year under section 106 of the Transfer of Property Act must end with the expiry of the year of the lease or with the expiry of the calendar year and whether the notice terminating the tenancy, therefore, conformed with -the statutory requirement. According to the learned Counsel, if the lease is from year to year which, in his opinion, it is, the notice to vacate should have been given six months prior to the end of the year of the lease, and not with the end of the calendar year. As the kabuliyat was registered on 9th Falgun, 1356 B.S. corresponding to February 21 1950 the period under notice should have ended on 8th Falgoon of the year in which notice was given. Instead of this, the notice which was served by registered post on 25th Aswin, 1366 B.S. asked the appellant to vacate by 30th Chaitra, 1366 B.S. As no particular date has been mentioned in the kabuliyat as to when the lease commenced, according to Mr. Khondaker, it commenced from the date of the making of the lease. Nur Banu Vs. Noor Mohammad and others (1983) 35 DLR (AD) 182. —Issue as to sufficiency of notice not having been raised in the courts below, the defendant can not be allowed to raise it now. Ibid. —Sufficiency of notice—as decided by the Privy Council. In the case of Benoy Krishna Das, (37 CWN PCi) the terms of the lease showed that the lease was “from the 1st day of June, 1921 for the term of four years thence next ensuing”. The lease ended on the midnight of 1st June, 1925. Any notice to determine the tenancy thereafter given must be a notice to quit expiring with the month ending at midnight on the first day of the month. Here, the tenants held over and notice to determine their monthly tenancy was given on 1st February, 1928. The Judicial Committee held that the notice was a proper notice under section 106 of the Transferor Property Act and it expired on the midnight of 1st March and not on the 29th of February. Nur Banu Vs. Noor Mohammad and others (1983)35 DLR (AD) 182(183). —Notice under section returned refused by post office—If notice is sufficient for termination of tenancy. The question of the presumption of service through the post is obviously one that has to be decided upon the facts of each case and seeing the envelope in this case and the postal endorsement thereon, we have no doubt that we are perfectly safe in accepting the presumption that arises under section 114(c) in this particular case. Therefore the refusal of the notice under s.106 would be sufficient to terminate tenancy. Jaffer Sultan Zaidi Vs. United Commercial Corpn. Ltd. PLD 1962 (WP) Karachi 561 (DB) (Raymond, J) [But see PLD 1963 Dacca 477 ‘DB) 1. —Notice—plea that notice, was not proper not raised in trial Court—Not allowed to be raised in appeal. Where the validity of notice was not challenged in lower Court but was sought to be raised for the first time in appeal. Held: The appellant is not entitled to raise the question of the validity of the notice of ejectment at appellate stage for the first time. Rajabali Vs. Gujrat Bus Service PLD 1961 (WP) Karachi 486 (DB) (Anwarul Haq, J). —One month’s notice alleged to have been given to tenant to vacate premises— Notice for period less than one month— Notice is invalid. When the allegation in the plaint was that one month’s notice had been given to the tenant to vacate the premises but it was found that the notice was for less than one month. The landlord urged that he should be taken to have given 15 days’ notice as provided under this section. The Court repelled the contention and held that as the allegation was of one month’s notice, the fact that it was for a shorter period would be fatal for the suit. GA Jaffery Vs. Karachi Port Trust PLD 1962 (Kar) 32 (Wahiduddin, J.) —Monthly tenancy expiring after 4 months—Tenant continuing in possession subsequently—Liable to pay rent. Where the four months of the lease expired on 24.7.49 and the defendants continued in possession without any objection by the plaintiff. Years passed and the plaintiff claimed rent. Held: That the plaintiff had assented to the defendants continuing in possession and, therefore, the lease must be held to have been renewed from month to month because that was the purpose of it as specified in section 106 of the Transfer of Property Act. Zahir Ahmad Vs. Seth Sugnichand PLD 1965 (WP) Karachi 195. Sections 106 and 107—Whether a lease is monthly or yearly, depends upon the contract. It is not at all correct to say that there cannot be a yearly lease for the purpose of a shop. Whether lease is monthly or yearly, depends primarily upon the contract by which it was made. It is only in the absence of any contract or local law or usage that the question of its purpose arises; and the rule is that a lease for any purpose, other than for agriculture or manufacture, must be deemed to be a lease from month to month. No doubt section 106 of the Transfer of Property Act draws a line of division between lease for agricultural or manufacturing purposes on one side and the rest on the other; but it does not interfere with the freedom of contract. Md. Siddik Vs. Rabeya Khatun (1954)6 DLR 250. —Reservation of an annual rent. The reservation of an annual rent is not by itself sufficient to prove in every case that the lease is from year to year. A mere reservation of an annual rent would not make a lease from year to year unless the deed is registered or where a contrary intention is deciticible from the contract between the parties. Ibid. —Where an annual rent has been reserved with a provision for forfeiture, fixing 30th Chaitra every year as the fatal date of default it does not show that a monthly tenancy was intended. The default of monthly installment has no adverse consequence until the end of the year and this fact is of importance, for it goes to show that the tenant is not to be disturbed even though he had failed to pay the rent until the end of the year Ibid. Ss. 106, 107 & 110—Kabuliyat being a document executed by one party only, provisions of sections 106 & 110 will not apply to it. Nur Banu Vs. Noor Mohd. (1983) 35 DLR (AD) 182. Ss. 106, 108—Sub-lessee or assignee of lease—Cannot be evicted without termination of lease. Sub-lessee or assignee of lease cannot be evicted without terminating the original lease. Kasim Vs. Chandrabahan PLD 1962 (Kar) 253 (DB). (Wahiduddin. J.) Ss.106 and 110—Where after the expiry of the lease the tenant holds over, the notice to quit should be served considering the provisions of section 106 read with section 110 of the Transfer of Property Act. Where after the expiry of the original lease, a tenant continues to be a tenant by holding over, then as regards service of notice to quit, the terms of the original agreement shall govern the same unless a new agreement is made. It is created quite independent of the original tenancy unless an agreement to the contrary is to be found. Kobbat Ahmed Vs. Abdul Sabur Sawdagar (1973) 25 DLR 282. Ss. 106 and 111(g)(e)—When the denial of title will operate as forfeiture whereby notice under section 106 dispensed with. The denial of the title of the plaintiff in order to operate as a forfeiture enabling the plaintiff to dispense with the notice under section 106 of the Transfer of Property Act is available when the same is done on an earlier occasion prior to the filing of the suit itself. Denial of the title of the plaintiff-landlord in the written statement of a suit is not available as a ground for forfeiture, which dispenses with necessity of serving a notice so far as is required to be provided in that suit itself though such a denial may be clearly taken advantage of for other purposes as well as in subsequent suits. The denial of the title of the plaintiff by the defendant in this suit, however, is possible to be taken advantage of by the plaintiff on a subsequent occasion. Ahmed Hossain Chowdhury Vs. Mst. Zakia Khatun (1968) 20 DLR 1154. Ss. 106 and 116—Lease agreement of a premises expired—Tenant continued in possession in absence of renewal of the original lease or further agreement and the landlord accepted the rent— Holding over of such premises by the tenant will be governed not by the original lease but by the general provisions of section 106 of the Act. Md. Rafique Vs. Md. Siddique (1970) 22 DLR 56. Ss. 106, 117—Agricultural leases— Provisions of s.106 should not be applied rigorously unless there is notification in official gazette. The principles embodied in section106 of the Transfer of Property Act are not to be regarded as being opposed to principles of justice, equity and good conscience, but at the same time they are not to be applied in all their rigour to agricultural leases, in the absence of a notification in this behalf under section 117 of the Transfer of Property Act. Rajabali Vs. Gujrat Bus Service PLD 1961 (WP) Karachi 486 (DB) (Anwarul Haq, J). S. 107—Lease for indefinite period— Defendant’s liability Lease for indefinite period—Implies a life-grant unless it is otherwise from words used or conduct of parties. Swarna Kumari Roy Vs. Sukmal Ch. Roy (1954) 6 DLR 474. —Verbal lease for one year—Lease continues after first year with possession and landlord accepting rents—Valid tenancy, as holding over. A verbal lease for more than one year accompanied by delivery of possession is valid for the first year and if the tenant continues in possession even after the first year and the landlord accepts rent from him, he will be regarded as a tenant by holding over. Roshan Ali Vs. Mosammat Abedur Nessa (1962) 14 DLR 583. —Patta executed only by lessor, void and not enforceable. The paua in die present case was a unilateral document executed only by lessor, and not both by the lessor and the lessee. This unilateral patta offends against the provision of section 107 of the Transfer of Property Act and is, therefore, void. Mst. Laila Begum Vs. Mst. Maleka Khatun (1968) 20 DLR 475. —Extension of the lease without delivery of possession—Invalid. After the termination of the original lease an extension of the lease was granted but as there was no delivery of possession accompanying the lease. Held: Lease not valid. A lease for nonagricultural purposes for one year or less can be created either by a registered instrument or by oral agreement But such lease must be accompanied by delivery of possession as required under section 107 of the Transfer of Property Act. Province of East Pakistan Vs. Sayed Ahmed Miyan (1968) 20 DLR 106. —Even in a monthly lease the lessee not liable to eviction on 15 days notice, if his claim of tenancy is in respect of land. Defendants purchased plaintiffs shop and took settlement of the land on which the shop stood and claimed a tenancy right in respect of the land by oral agreement accompanied by delivery of possession. It was contended that such a lease other than for agriculture or manufacturing purposes shall be decumcd to be a monthly lease and the defendant is liable to eviction by 15 days’ notice. Held: The defendant in the present case claimed his tenancy right to the land itself; so he is not liable to eviction on 15 days’ notice. Sara Chandra Biswas Vs. Mozam Sardar (1970) 22 DLR 102. —Unilateral lease document void for offending against provisions of section 107 of T.P. Act— Lessor and lessee respectively executed unilateral patta and kabuliyat the same day—The two documents cannot be treated as one for complying with the provisions of section 107. As each of the documents has not been executed by both the lessor and the lessee, the lease is void. Sheik Md. Siddique Vs. Hari Lal Nath (1970) 22 DLR 359. —Lessor created a perpetual lease-deed in respect of some non-agricultural land in favour of lessee for —The lease-deed (a registered document) was executed by the lessor alone and not by the lessee. Held: No valid deed is created unless the lease- deed is executed by both the lessor and the lessee. Whether a tenancy will be governed by the Transfer of Property Act or by the Bengal Tenancy Act will depend upon the purpose for which the tenancy was created and not on the actual user of the land. Syed Imteyazuddin Hossain Vs. Md. Abdal Majid (1970) 22 DLR 451. —Amalnama (not registered) showing lease for 11 years—It is admissible only to show that there was a lease just for one year. It is urged that the tenant took settlement of the fishery for eleven years from the ex-rent receiver under an Amalnama. It is, on the other hand, argued that the Amalnama (evidencing a lease of 11 years being an unregistered instrument) cannot operate to create a right in the land. Held: Although there could not be any lease for all the eleven years in the absence of a registered instrument but there was still a tenancy for a period of one year and it has been found that the rent was paid for the first year. Hence he was a tenant for the particular year. Province of East Pakistan Vs. Nakuldas Mirdha (1968) 20 DLR 769. —Lease, purpose of—Lease created by an unilateral document is not hit by section 107 T.P.Act where reading the document as a whole it appears that the lease was created for agricultural purposes— Recitals to the effect that if the land remains fallow and unproductive, still the same will not be admitted as an excuse for non-payment of rent or reduction of the same and if the area of the land is found to be more on survey then the lessee will be liable for higher rent along with the stipulation that the lessee will be entitled to plant trees on the bank of the tank and rear fish therein indicate that the lease created is for agricultural purposes. Azizur Rahman Vs. Hedayet Ahmed Chowdhury (1972)24 DLR 11. —No need of registration of an instrument creating tenancy for a year or less although governed by the Transfer of Property Act. Province of East Pakistan Vs. Abdul Jalil MoIla (1968) 20 DLR 1223. —A lease-deed (10 years in the present case)— Not an agreement of lease within the meaning of section 107 of the Transfer of Property Act unless the rent to be paid by the lessee is fixed and the deed registered. Sh. Barket Ullah Vs. Khawaja Mohammad Ibrahim, (1970) 22 DLR (SC) 419. —Unregistered lease-deed of immovable property from year to year is inadmissible in evidence for lack of registration. Abdul Majid Mia Vs. MW. Nabiruddin Pramanik (1970) 22 DLR (SC) 360. —Oral lease granted—Terms of lease subsequently entered on a memo—Memo does not require registration. Where an oral lease of property was granted and subsequently a meno in the form of a rent note was written to state the terms of the lease, and it was contended that as rent note was not registered, the lease did not materialize. Held: It is plain from the rent note itself that lease had already been granted and in the circumstances it must follow that it was by an oral agreement accompanied by possession. Such a lease does not require to be registered as is provided by section 107, Transfer of Property Act. Zahir Ahmed Vs. Seth Sugnichand PLR 1965 (WP) Karachi 195 (DB) (Faruqui, J). Ss. 107, 116—Unregistered lease for more than one year—Lease operates for first year—Continuance of lease subsequent to first year by holding over must. be proved by lessee. A lease of immovable property for a term exceeding one year, though made without a registered instrument, is valid for the first year; and if the lessee Continues to be in possession thereafter and the lessor accepts rent from him, a tenancy by holding over, from month to month or year to year, as the case may be, is created. Such tenancy must be teriminated in accordance with law before the lessor can resume possession. But the fact that there has been a lease for a year and that thereafter the lease was continued by holding over, the landlord having accepted rents, shall have to be established on evidence. Boshirullah Vs. Province of East Pakistan PLD 1962 Dacca 126=PLR 1961 Dacca 1000 (DB) (Murshid, J). Section 107—A patta unless executed both by the lessor and the lessee is void under section 107 of the Transfer of Property Act. A patta in order to create an interest must be executed by both the lessor and the lessee as required by this section. Where a patta was executed and registered only by the lessor the patta is void being in contravention of the provision of section 107 of the Transfer of Property Act. Therefore, the defendant No. I did not derive, any right title or interest in the land in suit on the basis of the said patta. Narendra Nath Vs. Abdur Rahman (1974) 26 DLR 45. S. 108—Material defect in the property The provisions of section 108 of the Transfer of Property Act can be invoked only if the plaintiff specifics the material defect in the property with reference to its intended use. and alleges that the defendant was aware of such defect and not the plaintiff and the plaintiff would not with ordinary care discover such defect. Hazi Abdul Karim Vs. Sk. Ali Mohd. (1959) 11 DLR (SC) 313. —Unauthorized structure rose by tenant—Landlord cannot claim damages— Remedies. The raising of the unauthorized structure or violation of the implied terms of the provisions of section 108, Transfer of Property Act, 1882, did not in the least entitle the landlord to claim damages unless and until it was also proved that the tenant by any of his acts had caused physical injury to the property which had resulted in some loss to the landlord. The misuse of property is one thing and wrongful use and occupation of property is another thing. The occupation or possession of a tenement can become wrongful only after the tenancy is terminated and not before that. As long as the tenancy subsisted the occupation of the tenant, in the instant case, was not that of a trespasser and no damages could be claimed from him by the landlord simply because the tenant was wrongfully making beneficial use of the demised property. Aslam Fazal Ahmad Vs. Ghulam Muhammad PLD 1961 (WP) Kar 248 (DB) (Wahiduddin,J.) S. 108(a)(b)_ApPlicabilit3’ of the section—Failure to deliver possession— Liability for rent. Section 108(a)(b) of the Transfer of Property Act is applicable to an agreement for lease where it contains a term which entitles the tenant to occupy the property under it, of which specific performance could be granted. The tenant stands in the same position as if lease has been granted to him and the landlord is bound at the request of the tenant to put him in possession of the property. Section 108 imposes a clear obligation on the lessor to put the lessee in getting the possession of the property and he cannot avoid responsibility on the ground that the agreement stipulates that it is in the tenant’s occupation or the tenant has agreed to pay rent in advance. Where the tenants are under agreement to pay rent in advance unconditionally from a certain date their liability to pay it continues till the time the landlord’s arc called upon to discharge their obligation of putting the tenants in possession. Any breach of section 108, Transfer of Property Act committed by the landlords at a later stage will not absolve the tenants from their liability to pay rent for the earlier period. In cases of breach of an agreement for lease the tenant is entitled to claim damages to be assessed on the actual loss including loss of profit which the tenant had suffered on account of the alleged breach. PLR (1960)2 WP 834 (FB). S.. 108(b)—When the lease is not valid, as not being accompanied by delivery of possession—a suit for damage against the lessor does not lie. Province of East Pak. Vs. Syed Ahmed Mia (1968) 20 DLR 106. S. 108(d)—Accession during the continuance of the lease Section 108(d) of the Transfer of Property Act provides that if during the continuance of the lease any accession is made to the property such accession (subject to the law relating to alluvian for the time being in force) shall be deemed to be comprised in the lease. Satya Sudihr Ghosal Vs. Surendra Lal (1954) 6 DLR 497. S. 108(e)—When entire subject-matter of lease destroyed by fare section 108(e) of T.P.Act not applicable—Such case governed by general principies of law. Golam Rahman Vs. Emaratannissa Begum (1970) 22 DLR 126. —Clause (e) of s. 108 of the TP Act provides for instances in which a material part of a property is wholly destroyed or rendered substantially and permanently unfit for use for the purpose it is let, in which case the tenant has an option to terminate the lease. Sec. 108(c) does not deal with the case of total destruction of the subject-matter of the lease. Azizur Rahman Vs. Abdus Sakur (1984) 36 DLR (AD) 195. S. 108(f)—Repairs without notice to the landlord. Section 108(f) of the Transfer of Property Act and also section 18 of the Calcutta House Rent Control Ordinance does not entitle a lessee of leasehold premises to make repairs, however, urgent the repairs may be, without giving notice to the landlord. 2 PLR (Dacc) 457. S. 108(n)—Trustees or lessors clothed with fiduciary character—Their disability. Where a lessor reposes confidence in the lessee to fulfill the statutory obligation embodied in section 108(n) of the Transfer of Property Act truly and faithfully, there is to this extent a fiduciary relationship between the lessor and the lessee and the latter who will not be allowed to put himself in a position where his duty and his own interest come in conflict and to obtain an advantage over the lessor whom he is bound to protect by giving a timely information of the threat to his proprietary right. Khan Bahadur Khalilor Rahman Vs. Binoy Ranjan Kanungoe (1962)14 DLR 84 —When a person puts himself in the position of a tenant under another, if the former allows to fall in arrears and then on a decree oblaincu exparte, himself (i.e., the tenant) purchases the property in the benami of some person, he puts himself in relation to his landlord in a fiduciary position and in purchasing this property (bcnami) in execution proceedings he acts in violation of the provisions of section 108(n) of the T. P. Act and thus cannot retain the benefit of his purchase. Held: Section 108(n) of the Transfer of Property Act imposes an obligation upon the lessee to notify to the lessor of any invasion upon his proprietary rights by legal proceedings or otherwise, Dasudar, in the present case, had reposed confidence in Kanungo to fulfill this statutory obligation truly and faithfully and to this extent there was a fiduciary relationship between them which prevented Kanungo from putting himself in a position where his duty and his own interest came in conflict and to obtain an advantage over Dastidar when he was bound to protect by giving timely information of the threat to his proprietary rights. Bejoy Ranjan Kanungo Vs. Khan Bahadur Khalilur Rahmwz (1968)20 DLR (SC) 286. S. 108(o)(p)—Lease—Restrictive covenant—Terms of lease prohibiting construction on leased plot of land without consent of lessor— Lessor cannot unreasonably withhold sanction of proposed alteration which constitutes improvement. Haroon E. H. Jaffer Vs. Sind Industrial Trading Estate Ltd., (1969) 21 PLD (Karachi) 227. S. 109—Lessor transfers the property leased, rights and liabilities of the lessor. Section 109 of the T. P. Act provides that if the lessor transfers the property leased, or any part thereof or any part of his interest therein the transferee in the absence of a contract to the contrary shall possess all the rights, and if the lessee so elects subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it. 1952 PLR (Lah) 21. S. 110—Computation of period of a lease—Duration of the lease and its determination. The section provides for computation of period of a lease in order to find out duration of the lease and its determination. It nowhere refers to any lease which is to conic into effect in a future date but only refers to a lease already in existence nor does it provide that in case of an agreement where date of commencement of a lease is not mentioned it will be assumed that the date would be the date of execution of the lease. Bhagabat Ranjan Das Vs. Sidheswar Pakrashi (1957) 9DLR 533. —When there is no mention of the date of commencement of a lease: An agreement for lease is not an instrument of lease but it is a contract to bring a lease into being in future. If there is no mention of the date of commencement of a lease in the contract, either expressly or impliedly, section 110 would not fill up the gap. Ibid. —The expression ‘time limited’ is not applicable to a monthly tenancy. The words “time limited” in sec. 110 of the Transfer of Property Act indicate that this provision will apply only to a lease of immoveable property where the lease is for a limited period and the period is expressed and in no other case. A monthly tenancy is not for a limited period, but for an indefinite time subject to termination of the tenancy at the option of the lessee or the lessor. Provisions of section 110 of the Transfer of Property Act has no application in computing the period of a monthly tenancy—and in monthly tenancy date of commencement should not be excluded but be included. M. Salim Vs. Shaikh Abdul Latif (1962)14 DLR 186. S. 111—Mortgagee’s interest in the mortgaged property subsists so long as the mortgagor has not been paid off—Any derivative title from the mortgagee ceases to exist with the extinction of mortgagee’s right in the property. Hasina Begum Vs. Haji Md. Ekramulla (1982) 34 DLR 116. —Interest as lessor is coterminous with the mortgagee’s interest. Ibid. S. 111(c)—of the Transfer of Property Act provides that a lease of immovable property determines where the interest of the lessor in the property terminates on or his power to dispose of the same extends only to the happening of any event by the happening of such event. Ibid. S. 111, (d)—Doctrine of merger The doctrine of merger contained in section 111 is subject to section 2(c) which makes it inapplicable to leases created before the Act came in force. Tajim Ali Vs. Saijuddin Khan (1954) 6 DLR 25. —Merger of by operation of law and intention of parties. But this does not mean that there cannot be any merger where the Act does not apply. If the Act does not apply there cannot be any merger by operation of law, i. e., by the union of the subordinate and superior interest in the hands of the same person. Ibid. —In such a case the question whether there was a merger or not depends upon the intention of the parties. It is open to the person, in whose hands the two interest unite, to keep them apart or to sink the subordinate into the superior interest. Ibid. S. 111(g)—Unauthorized alteration. An unauthorized alteration of the lease-hold premises by the lessee does not Constitute forfeiture within the meaning of section 111 (g) of the Transfer of Property Act. 2 PLR (Dac) 457. —Tenant’s assertion of higher status of the tenanted premises when does not always operate as forfeiture of his tenancy right. If a tenant does not deny his liability to pay rent but asserts a higher status as a lessee than what is admitted by the landlord, such an assertion does not amount to denial of the landlord’s title, nor of the setting up of a title by the defendant in himself and therefore, that does not operate as forfeiture of his tenancy right. Abdul Majid Mia Vs. MW. Nabiruddin Pramanik (1970)22 DLR (SC) 360. S. 111(g)(2)—Penalty of forfeiture is incurred only after the defendant has ivpudiatcd the relationship of the landlord and tenant which can possibly happen (in a suit where the landlord sought ejectment of the defendant on the ground of the latter being a tenant under him) after, and not before, the defendant has filed his written statement denying the asserted relationship—As this stage of filing WS comes after the filing of the plaint, the plaintiff, perforce, is under legal obligation, if he wants to eject the tenant under section 106 of the TP Act, to serve notice as required by section 106 of the Act—Denial by the tenant in the WS may be availed of in a subsequent Suit .or other purpose. Ahmed Hossain Choudhury Vs. Musammat Zakia Khatun (1968) 20 DLR 578. S. 111(h)—Death of the original tenant On the death of the original tenant the tenancy devolves on the heirs and can only he terminated by a notice to quit. Gouri Bala Pal Vs. Kunja Lal Saha. (1960)12 DLR 37. S. 116—Holding over—Tenants remain in possession of the lease-hold property. The provisions of section 116 of the Transfer of- Property Act arc applicable where the tenant remains in possession of the lease-hold property after the determination of the lease granted to the tenant and his continuing in possession is assented to by the landlord. A tenant who surrenders does not come within the meaning of the words “remains in possession” of this section. Aswini Kumar Poddar Vs. Taraj Ch. Rajbangshi (1954)6 DLR 652. —Tenants by holding over. Defendants’ lease of certain fisheries under the plaintiffs terminated in 1341 B. S., but they Continued their possession even thereafter. Plaintiff brought suit for rent against the defendants for the year 1342 which was decreed. In 1346 plaintiff granted a lease of the fisheries to a third party who failed to secure possession thereof from the defendants. Plaintiffs thereupon brought a suit for rent for the year 1346 to 1349 (with alternative prayer for damages for use and occupation during the period in suit). The defense was the denial of plaintiff’s title to the fisheries. Held: Plaintiff is entitled to get a decree for rent as, under section 116, defendants would be held to be tenants under plaintiff by holding over after the termination of the lease in 1341 under the same terms and conditions. Almas Ullah Vs. Srish Ch. Dam. (1951) 3 DLR 526. —Lessor ‘otherwise assents to his continuing in possession”—Suing for rent held to indicate assent on the part of landlord—Lease renewed from year to year or from month to month as the case may be. 1954 PLR (Lah) 829. —Lessee holding over after the period of lease becomes a tenant. An agreement to lease immovable property from year toy or for any term exceeding one year accompanied by delivery of possession, in the absence of a registered lease deed, is valid for one year and if the lessee continues in possession with the assent of the lessor, the lessee becomes a tenant by holding over under section 116 of the Transfer of Property Act. SM Lalita Roy Vs. Rafiqullah Khan (1966)18 DLR 107. —Tenancy right by holding over. The very fact that the tenant after expiry of the lease was allowed to remain in undisturbed possession of the land (non-agricultural land) for a long period (33 years in the present case) and that the holding comprising the suit land was allowed to stand in the municipal register in the name of the tenant without any protest from the landlord or the subsequent lessee who took lease of the land in tenure right clearly indicate that both the landlord and the subsequent lessee acquiesced in the holding over of the suit land by the tenant and after him by his heirs. Therefore, the tenant’s claim of tenancy right by holding over cannot be denied. Mastakim Ali Vs. Shafique Uddin Chowdhury (1970) 22 DLR (SC) 395. —Tenancy right—By open and actual possession for a long period in assertion of tenancy right the tenant acquires limited tenancy right. Auction-purchaser, in a rent execution case started by the landlord against the tenure-holder, acquires only the right, title and interest of the tenure- holder but the tenancy right of any person in the said land remains unaffected by such auction-purchase. Ibid. —Lessee holding over after the expiry of lease—Effect. When a person is in possession of certain land on the basis of lease for a fixed term and continues as such in possession even after the expiry of the lease period the position of that person is not that of a trespasser but of a tenant holding over under section 116 of the Transfer of Property Act. Banaras Co-operative housing Society Ltd. Vs. The Chairman, Karachi Development Authority (1970) 22 DLR (SC) 431. —Holding over Tenancy claimed by right of holding over— Claimant to conclusively prove it—Till this is done Government not called upon to prove compliance with Chapter V of Acquisition Act (XXVIII of 1951). Province of East Pakistan Vs. Nakuldas Mirdha (1968)20 DLR 769. S. 117—Section 117 excludes only agricultural lease. There is no indication in section 129 restricting its application only to a particular class of las, that is, non-agricultural land, as section 23 of the Non-Agricultural Tenancy Act, 1943 has provided. Section 117 of the Transfer of Property Act excludes from its operation only agricultural leases but not other dispositions. Jabed Ali Vs. Abu Shaikh (1983) 35 DLR (AD) 31. S. 1 18—If an exchange of lands is not effected by a registered instrument, that would not create any interest in favour of any party to the exchange as no valid title could be created on the basis of an oral exchange. Jabed Ali Bepari Vs. Abdul Bari Bepari (1967) 19 DLR 192. S. 119—Exchange of property— Provision of s. 119 applicable so long as property remains in hands of person to whom it had been given in exchange and not after he has parted with same in favour of third person—Exchange of lands between A & B—Exchange deed covenanting ‘if any loss is sustained by one party due to any factual or legal flaw in title to land, ckh would be liable for any loss sustained by the other”—Liability created by covenant, held, “personal” and not “running with land” exchanged—Provisions of s. 119, held, not attracted. Muhammad Shah Vs. Sher Muhammad, (1969) 21 PLD (Peshawar) 103. — S. 129—Provision of section 129 is applicable to Muslims only when transferring property by gift. Jabed Ali Vs. Abu Shaikh, being dead his heirs: Md. Naimuddin and ors. (1983) 35 DLR (AD) 31. —S. 129 and s. 117—Section 129’s application is not to a particular class of lands. Ibid. S. 130—The true test for determining the nature of the claim sought to be assigned should be to see that the claim when it does accrue, partakes of true character of a beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant which can be recovered by an action. Kazi Abdul Ali Vs. Nurul Amin. (1955)7 DLR 406. S. 135A—Subrogation. Insurance company can be subrogated in the position of the insured and thereby become vested with the right of the latter to sue the person liable. Insurance company can be subrogated in the position of the insured and thereby become vested with the right of the latter to sue the person liable originally to the insured. Trans Ocreanic Steamship Vs. Issak Hazi Shakoor (1960)12 DLR 690. —In case of Marine Insurance the Insurer having paid up loss sustained by the assured and being thus subrogated to the position of the assured is entitled to sue tort-feasor ,i.e., the person who has caused the loss, in his own name. East & West Steamship Co. Vs. Queensland insurance Co. (1964)16 DLR (SC) 61. —Even after subrogation the insured can file a suit for recovery of damages. Though section 135A of the Transfer of Property Act only has given right to the insurer after subrogation to sue on his own behalf but that has not taken away the right of the insured to file a Suit for and on behalf of the insurer after getting compensation from the insurer. M. Ismail and Sons Vs. Trans Oceanic Steamship Co. Ltd. (1965)17 DLR 269. S. 136—It is not incumbent on the landlord to call and examine the postal peon who delivered the notice at the premises of the addressee. Haji Khabiruddin Ahmed Vs. Md. Salam Kabir (1982) 34 DLR (AD) 271. Secs. 161 & 164—Gift of property which are capable of division. Section 161 of the TI’ Act says that a gift of property which is capable of division to two or more persons without specifying their shares or without dividing it is invalid but it may be rendered valid if separate possession is taken by each donee of their respective portion of the property or if there is a subsequent arrangement between the donees with regard to the possession of the property. Section 164 further says 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. Monzurur Rahman Vs. Rema Tea Co. Ltd. (1981) 33 DLR 49.