High Court Division
Abdul Rezzaque Bhuiyan and others v Abdul Hossain Khan and others
First Appeal 721/2018 · Appeal allowed; decree set aside · Decided 10 September 2026
The respondents sued for declaration of title to 21 decimals of land, claiming by inheritance from the C.S. recorded owner, and for a declaration that the defendants' 1918 unregistered sale deed and later mortgage and kabuliyat deeds were forged. The Joint District Judge, Munshigonj decreed the suit. On the defendants' appeal, the High Court Division held that a registered 1924 deed showed the father of plaintiffs 1 to 7's predecessor died before the grandfather, excluding the grandson from direct inheritance under the law before the Muslim Family Laws Ordinance, 1961. The Tk. 85 sale of 1918 was valid under section 54 of the Transfer of Property Act, 1882 on delivery of possession, and the ancient deeds from proper custody attracted the section 90 presumption, which minor calendar variances did not rebut. The trial court had wrongly shifted the burden. The plaintiffs, out of possession, sought only a declaration, barred by section 42 of the Specific Relief Act, and the 90-year delay attracted limitation and laches. The appeal was allowed.
- Whether century-old sale, mortgage and kabuliyat deeds produced from proper custody attract the presumption of genuineness under section 90 of the Evidence Act, 1872, despite minor calendar discrepancies.
- Whether a grandson whose father predeceased the grandfather could inherit directly under Muslim law as it stood before the Muslim Family Laws Ordinance, 1961.
- Whether a suit for bare declaration of title by plaintiffs out of possession is maintainable under the proviso to section 42 of the Specific Relief Act, 1877.
- Under the Islamic law of inheritance applicable before the Muslim Family Laws Ordinance, 1961, a grandchild whose father predeceased the grandfather is excluded from direct intestate inheritance.
- Under section 54 of the Transfer of Property Act, 1882 as it then stood, a sale of tangible immovable property valued below Tk. 100 was complete on delivery of possession, irrespective of registration.
- Documents over thirty years old produced from proper custody carry a presumption of due execution and attestation under section 90 of the Evidence Act, 1872, and minor calendar or stamp-vendor discrepancies do not rebut it without strict affirmative proof of fraud.
- A plaintiff must succeed on the strength of his own title and cannot rely on technical flaws in the defendant's ancient documents; the trial court erred in shifting the burden of proof.
- A suit for bare declaration of title by plaintiffs out of possession who do not seek recovery of possession is unmaintainable under the proviso to section 42 of the Specific Relief Act, 1877.
- An inordinate and unexplained delay of nearly 90 years in challenging the deeds rendered the suit barred by limitation and the doctrine of laches.
Under the mandatory proviso to Section 42 of the Specific Relief Act, a suit for bare declaration, where the plaintiff is out of possession and omits to seek recovery of possession, is legally unmaintainable.
