JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. The writ petition has been filed challenging the orders dated 27.2.2001 and 29.5.2001 passed by the Civil Judge (Senior Judge) and the Additional District Judge, Meerut respectively, refusing to restore the Original Suit No, 888 of 1994, alleged to have been passed on a fraudulent compromise decree.
3. Since practising fraud and committing forgery in Court records is alleged in passing the decree, It is necessary to give some facts in detail.
4. According to the case of the petitioner, she inherited certain properties from her father. Out of these properties the four-disputed house are situate at Meerut. The petitioner lives at Bareilly and is a Pardanashin Muslim woman. In order to manage her properties, which she inherited from her father at Meerut, she appointed Sri Zameer Ahmad, her husband, as general attorney. She and her five daughters executed general powers of attorney on 16.3.1991 in favour of Sri Zameer Ahmad but this deed was cancelled by registered deed dated 10.1.1994.
5. Plaintiff-respondent No. 1 in connivance with Nadir Khan got a Suit No. 888 of 1994 filed in the Court of Civil Judge (Senior Division), Meerut by Nadir Khan alleging that the houses in dispute situate at Meerut have been gifted to him by the petitioner Smt. Sultana Sayeeda on 30.1.1994 by oral gift and she delivered possession of the property to him on the same day. The gift was alleged to have been accepted by him on the same date but when application for mutation in municipal records was filed she not only objected to get the name of Nadir Khan mutated but also denied the gift itself, hence suit for declaration and possession was filed. In the plaint the address of the petitioner Smt. Sultana Sayeeda is given that of 33 Purva Ahirana, Meerut though she lives at Bareilly. The suit was registered on 15.9.1994. The summons was ordered to be issued on the same day fixing 3.11.1994 for filing written statement and 10.11.1994 for framing issues.
6. The summons are said to be served on defendants on 25.9.1994 and defendants are said to have appeared through their General Attorney Zameer Ahmad on 22.9.1994 and filed written statement admitting oral gift and stating no objection for decreeing the suit. This compromise is said to have been signed by plaintiff Nadir Khan and Sri Zameer Ahmad as attorney for defendant Nos. 2 to 6 and Sultana Sayeeda defendant No. 7 personally. This compromise deed was placed before the Civil Judge (Senior Division) for verification on 4.10.1994. The verification runs as under :
^^vkt fnukad 4-10-1994 dks le>kSrk i= oknh ukfnj [kka] cf'kuk[r Jh ujsUnz izlkn 'kekZ] ,MoksdsV o izfroknhx.k dh rjQ ls eq[rkjs vke Jh tehj vgen cf'kuk[r ,l-ih flag iaokj ,MoksdsV ds vfHkKku ls U;k;ky; ds le{k lqukdj o le>kdj lR;kfir fd;k A g- lqyrkuk lbZnk g- vLi"V eqgj flfoy tt] esjB A 4-10-1994 izfroknhx.k dh vksj ls eq[rkjsvke g- mnwZ esa Identified the signature of defendant Zameer Ahmad g- vLi"V fnukad 27-9-1994 Seal S. P. Singh Panwar Advocate.
g- mnwZ esa Identified Zameer Ahmad g- vLi"V fnukad 4-10-1994 oknh ukfnj [kka Identified the signature of Plaintiff Nadir Khan g- vLi"V 27-9-1994 Seal Narendra Pal Sharma Vakil ukfnj [kka Identified the signature of Plaintiff Nadir Khan g- vLi"V fnukad 4-10-1994
7. It is alleged by the petitioners that prior to 23.5.1995 they had no knowledge about the order dated 4,10.1994 which was passed on the basis of forged and concocted written statements as well as forged compromise filed by respondent No. 3. It is further specifically asserted that the petitioners neither engaged any counsel on their behalf nor they filed their written statements as disclosed in the order dated 4.10.1994 and the said order dated 4.10.1994 came to their knowledge on 23.5.1995 and then they made proper enquiry about the case and came to know that a forged written statement had been filed on 22.9.1994 by respondent No. 3 which contains the alleged signature of petitioner No. 1 in Urdu.
8. It is further submitted by the petitioners that from the perusal of record it further came to their knowledge that one forged compromise application had also been filed by respondent No. 3 on 27.9.1994 on the basis of which Suit No. 888 of 1994 had been decreed vide order dated 4.10.1994 in terms of the alleged compromise dated 27.9.1994 by the Civil Judge (Senior Division), Meerut and thereafter the petitioners approached their counsel on 19,4.1995 and filed restoration application supported by an affidavit of Km. Mansoor Zia (now deceased daughter of petitioner No. 1). In the said affidavit it was specifically stated that there is no oral hibba in favour of respondent No. 3 by the petitioners and the averments in this regard are wholly false and wrong and by playing fraud he succeeded to obtain decree dated 4.10.1994. It is also submitted that while issuing summons in O.S. No. 888 of 1994 the learned Civil Judge (Senior Division) fixed 3.11.1994 for W.S. and 10.11.1994 for framing of issues but it is strange that the case was decreed on 4.10.1994.
9. The original record was summoned by the Court. A perusal of the original record shows that it bears signatures of Smt. Sayeeda Sultana which have been denied by her. Her case is that since other person has put her signatures, she never signed or verified the compromise deed and Zameer Ahmad had no authority to sign as her power of attorney had been cancelled. This statement is fully supported by the endorsement of the Civil Judge that she did not sign or verify the compromise. There is also signatures of Zamir Ahmad second time which have been identified on 4.10.1994. The two signatures of Zameer Ahmad have been identified by the same person.
10. The suit was decreed on the basis of said compromise on 4.10.1994. The defendant-petitioner appeared in the Court on the date fixed in the summons, i.e., 4.10.1994 and came to know about the compromise decree passed on 4.10.1994. The petitioner-defendant filed restoration application for recalling of above ex parte compromise decree on 21.10.1994, This application was registered as Misc. Case No. 148 of 1994. The record of this miscellaneous case was found missing as is evident from the order of Court dated 6.2.1995. The Civil Judge initiated proceedings for enquiry vide order dated 7.2.1995 about loss of the record. The enquiry was concluded and it was reported on 22.2.1999 that record has been lost and it is not possible to pin point the clerk from whose custody the file was lost. However, it appears that later on the file was surprisingly found lying in court premises. The petitioner-defendant then filed an application stating that all but first and last pages of the restoration application had been changed and she sought permission to file another affidavit, which was allowed by the Court. The petitioner thereafter filed a fresh affidavit. During the pendency of the suit the petitioner also filed an application on 23.3.1998 that the plaintiff-opposite party Nadir Khan forcibly entered her house and forcibly tried to dispossess her. The Civil Judge after hearing both the parties passed an injunction order dated 31.3.1998 restraining the plaintiff-opposite party Nadir Khan from interfering in the possession of the petitioner. It is further alleged that on 31.12.1999 Nadir Khan again tried to interfere in her possession. However, the plaintiff gave an undertaking that he will not dispossess the petitioners. The restoration application of the petitioners was dismissed by the Civil Judge by Judgment dated 27.2.2001. The appeal against the Judgment was also dismissed on 29.5.2001.
11. From the admitted facts it is clear that plaintiff filed the suit claiming that petitioner-defendant had gifted the four houses by oral gift, which she denies. Except affidavit of the respondent Nadir Khan there is no evidence of any gift or its acceptance. It is also admitted that the petitioner-defendant objected even mutation over the property in favour of plaintiff-respondent. She is a Pardanashin lady and onus of proving valid gift lies very heavily on the plain tiff-opposite party. There is not even an iota of evidence to prove consent to the gift, which is a necessary ingredient of hibba (oral gift) in Muslim Law.
12. So far as possession over the property in question is concerned which is said to be disputed, it is stated in plaint that the possession was taken on the same day, i.e., 30.1.1994. The address given is of Meerut of the defendant-petitioner. It is further proved from the orders dated 31.3.1998 and 31.12.1999 passed by the Civil Judge that he was not in possession of the property and he was restrained from interfering in the possession of the defendant-petitioner, which is re-affirmed from the undertaking given by the plaintiff-opposite party that he will not disturb the possession of the petitioner-defendant. This further shows that the theory of acceptance of gift by taking possession is wrong. It is also quite unnatural that a lady will gift her only residential house and come on street.
13. The most suspicious circumstance is that a compromise is said to have been filed in Court even before service of summons on opposite party. Had the opposite party entered into compromise on 27.9.1994, she should not have appeared in Court on 2.10.1994 in pursuance of the summons for filing written statement.
14. The plaintiff-opposite party has been consistently saying that both Zameer Ahmad and Smt. Sultana Sayeeda had verified the compromise on 4.10.1994. This is contrary to the certificate given by the Civil Judge while verifying the compromise. The Civil Judge has not mentioned the name of Smt. Sultana Sayeeda in his certificate of verification of the compromise. Thus, it is wrong to say that Smt. Sultana Sayeeda, defendant No. 7, had verified the compromise. So far as verification on behalf of defendant Nos. 2 to 6 is concerned they are said to be represented by Zameer Ahmad by virtue of power of attorney given to him on 6.3.1991 but this power of attorney had been cancelled on 10.1.1994. Thus, Zameer Ahmad had no right to enter into any lawful compromise on 27.9.1994 and 4.10.1994. This also is a circumstance casting doubt on theory of compromise. Signing the instrument on different dates for verifications are another circumstance for which there is no explanation and justification. The signature of Zameer Ahmad and plaintiff Nadir Khan are dated 27.9.1994 and were identified on 4.10.1994 before Court. The signatures of Zameer Ahmad are in Urdu on the front page and the back of the compromise. The defendant's case is that Zamir Ahmad used to sign in English. I find that Zameer Ahmad has put his signature in English on two vakalatnamas as well as the registered power of attorney before the Registrar. At one place Zameer Ahmad has signed in Urdu. On comparison of signatures on compromise deed they appear to be different.
15. A bare perusal of the judgment of the trial court shows that it has not taken into consideration the verification of compromise by the Court concerned wherein signatures of Mst. Sayeeda Sultana has not been verified at all and so far as her husband Zameer Ahmad, alleged holder of power of attorney on behalf of other defendants is concerned, they are without authority and immaterial power of attorney had been cancelled by Mst. Sayeeda Sultana by subsequent registered instrument dated 10.1.1994, i.e., much prior to the verification made by the Court on 4.10.1994. Thus, the conclusion arrived at by the two courts below in impugned Judgments dated 27,2.2001 and 29.5.2001 are vitiated being perverse and based on misreading that power of attorney was subsisting on the date of verification evidence. Zameer Ahmad was not at all competent to enter into any compromise on behalf of any defendant. The Courts committed a manifest error apparent on the face of record in holding that there was a lawful compromise. The following finding is against record.
^^bl rF; dks izkFkZuh lqYrkuk lbZnk Hkh Lohkdj djrh gS fd mlus esjB esa fLFkr leLr lEifr dh ns[kHkky ,d eq[rkjuke vius ifr tehj vgen ds uke rgjhj o rdehy fd;k Fkk mlesa fgcS o jsgu ds vf/kdkj Hkh fn;s Fks vkSj og vc Hkh cjdjkj gS A**
16. It appears that the Courts have not proceeded the matter with Judicious approach and has not even cared to look into the relevant record which was the bone of contention and has in a cursory manner decided the matter. The merit of case has no relevancy at this stage. In so far as findings of appellate court is concerned that too suffers from error of law and vice of misreading of the relevant record. The lower appellate court has wrongly shifted the onus on a pardanashin lady to prove her signatures through handwriting expert. The lower appellate court has held as under :
^^vihykFkhZ ds bl dFku esa Hkh dksbZ cy ugha gS fd okn la- [email protected] esa nkf[ky odkyrukek] izfrokn i= o lfU/ki= ij tehj vgen ds gLrk{kj ugha gksa A bl lEcU/k esa vihykFkhZ dh vksj ls dksbZ gLrys[k fo'ks"kK dh fjiksVZ Hkh izLrqr ugha dh xbZ gSaa A bl idkj vihykFkhZ Jherh lqYrkuk lbZnk dh vksj ls vius gLrk{kj ds lEcU/k esa Hkh gLrys[k fo'ks"kK dh fjiksVZ izLrqr ugha dh xbZ gS tcfd fofo/k okn la- [email protected] ds dFku dks lkfcr fd;s tkus gsrq [email protected] o vU; dk gh nkf;Ro jgk gS fd os odkyrukek] izfrokn i=] lfU/ki= rFkk fofo/k okn la- [email protected] esa nkf[ky fd;k x;k 'kiFk i= ds i`"B 2 rFkk 4 ij vius gLrk{kj ds ckjs esa gLrys[k fo'ks"kK ls tkap djus ds mijkUr ijh{k.k fjiksVZ izLrqr djrs ftlds vHkko esa muds }kjk ;g lkfcr ugha fd;k tk ldk gS fd mijksDr nLrkostksa ij Jherh lbZnk vFkok tehj vgen ds gLrk{kj ugha fd;s x;s gks A**
17. Though the lower appellate court has perused the compromise and its verification dated 4.10.1994 but has misread while holding :
^^i=koyh ds voyksdu ls fofnr gS fd U;k;ky; flfoy tt] esjB }kjk fnukad 4-10-94 dks lfU/k i= 12 d 2 ds vk/kkj ij fMØh ikfjr fd;k x;k gS vkSj fMØh dk va'k lfU/k i= 12 dk 1 dks cuk;k x;k gS ,slh n'kk esa ;g ugha dgk tk ldrk gS fd vihykFkhZ ds fo:) U;k;ky; }kjk dksbZ ,d i{kh;
fMØh ikfjr dh xbZ gks A lfU/ki= 12 d 1 voyksuu ls fofnr gS fd lqYrkuk lbZnk rFkk vU; izfroknhx.k dh vksj ls eUlwj ft;k ds firk tehj vgen us gLrk{kj djrs gq;s lfU/ki= izLrqr fd;k ftl ij mlds vf/koDrk }kjk lR;kfir fd;k x;k gS A U;k;ky;
ds le{k lfU/ki= 12 d 1 dks rlnhd fd;k x;k Fkk vkSj ,slh fLFkfr esa tc rd fd mlds foijhr dksbZ Bksl lk{; izLrqr ugha fd;k tkrk rc rd ;g ekU; gS fd U;k;ky; ds le{k vihykFkhZ o vU; izfroknhx.k us vius gLrk{kj ls lfU/ki= izLrqr fd;k Fkk vkSj U;k;ky; }kjk i{kdkjksa dh mifLFkfr eas lfU/ki= 12 d 1 dks rlnhd djrs gq;s lfU/k i= ds vk/kkj ij fMØh ikfjr fd;k x;k Fkk A**
18. Signatures of Smt. Sultana Sayeeda have not been verified by the Court. The conclusion drawn by the two courts below are based on irrelevant considerations. The petitioner has no other property left except these houses. There was no lawful compromise for passing decree. The record of Court was deliberately misplaced and it appears that signatures of Smt. Sayeeda Sultana were appended to show that she signed the compromise. The sequence of events goes to show that fraud was practised which vitiates whole proceedings and decree. It is a fit case for setting aside such decree. In the circumstances of this case and to prevent injustice it would be but proper to set aside decree and allow her to contest the suit on merits. Her application for restoration ought to have been allowed. If there was any oral gift as alleged by the plaintiff he should not felt shy in contesting the case on merits.
19. Sri V. K. Goel has drawn my attention to the Full Bench decision in Ghulam Ahmad Sofi v. Mohd. Siddiqui and Ors. In which it has been held :
"Thus, if all the formalities as prescribed by the Mohammadan law relating to making of gifts are satisfied i.e., there is a declaration by the donor of his intention to make a gift, there is acceptance of the gifts by the donee, and delivery of possession of the property is complete, the gift is valid notwithstanding the fact that it is made orally without any instrument. But if there is executed an instrument and its execution is contemporaneous with the making of the gift then in that case the instrument must be registered as provided under Section 17 of the Registration Act. If, however, the making of the gift is an antecedent act and a deed is executed afterwards as evidencing the said transaction that does not require registration as it is an instrument made after the gift is made and does not therefore create, make or complete the gift thereby transferring the ownership of the property from the executant to the person in whose favour it is executed."
20. In the instant case the respondent has denied execution of the gift deed ab initio and thus the consent is lacking. The cases cited by counsel for respondent No. 3 are irrelevant at this stage as I am not deciding the case on merits.
21. For the reasons stated above, Writ Petition Nos. -37034 and 43841 both of 2001 are allowed. I direct that impugned compromise decree be set aside and suit be restored to its original number and decided on merits according to law. Any observation made in this judgment or in the judgments of courts below on merits of case shall be ignored in deciding the case. No order as to costs.