Minor Date Discrepancy in an Ancient Deed Cannot Defeat Title: High Court
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| Supreme Court of Bangladesh |
The Court observed that where a document is more than 30 years old and is produced from proper custody, Section 90 of the Evidence Act, 1872 raises a statutory presumption regarding its due execution and authenticity. Such presumption cannot be displaced merely by pointing out minor clerical or calendar discrepancies.
Case Details:
The case is Abdul Rezzaque Bhuiyan and others vs. Abdul Hossain Khan and others, First Appeal No. 721 of 2018. The appeal was heard by a High Court Division Bench comprising Justice Sheikh Abdul Awal and Justice A. K. M. Rabiul Hassan. The hearings took place on 1, 3 and 9 September 2026, and judgment was delivered on 10 September 2026. The judgement has been published on the website of the Supreme Sourt of Bangladesh on 04 October, 2026.
Background of the Dispute:
The dispute concerned 21 decimals of land in Munshiganj. The plaintiffs claimed that Isob Kha was the original owner of the property and that, following his death, the land devolved upon his heirs. They alleged that the names of some of the heirs were subsequently omitted from the relevant survey records and therefore instituted a suit seeking a declaration of title.
The defendants, however, claimed that Isob Kha had sold the entire 21 decimals of land in 1918 for Tk. 85 to Sheikh Phelu Bhuiyan alias Amir Bhuiyan through an unregistered sale deed and had delivered possession to him. Subsequently, registered transactions relating to the property were executed in 1920 and 1926.
High Court's Findings:
The High Court found that the 1918 sale deed, the registered mortgage deed of 1920 and the Kabuliyat deed of 1926 were all ancient documents produced from proper custody.
The Court held that under Section 54 of the Transfer of Property Act, 1882, as applicable at the relevant time, a transfer of tangible immovable property valued at less than Tk. 100 could be completed through an instrument or delivery of possession. Since the consideration stated for the 1918 transaction was Tk. 85 and possession was delivered, the Court held that the transfer was legally completed even though the sale deed was unregistered.
The Court further held that Section 90 of the Evidence Act, 1872 permits the Court to presume the genuineness and due execution of documents more than 30 years old when they are produced from proper custody. Official registration volume books were also produced in support of the subsequent registered deeds.
The plaintiffs had pointed out discrepancies between the English and Bengali dates appearing in the 1918 deed. The High Court treated those discrepancies as minor and technical. According to the Court, a minor calendar-conversion discrepancy in a century-old document cannot, by itself, establish that the document is fabricated.
Importance of Possession in a Suit for Declaration of Title:
Another important aspect of the judgment concerns Section 42 of the Specific Relief Act, 1877. The Court observed that where a plaintiff is out of possession and is able to seek further relief, such as recovery of possession, a suit seeking only a declaration of title is not maintainable if such consequential relief is omitted.
In the present case, the plaintiffs had been out of possession of the property and had sought only a declaration of title without claiming recovery of possession. The Court therefore held that the suit was barred by the proviso to Section 42.
Finding on Succession:
The High Court also examined the plaintiffs' claim of succession. The Court found that the genealogy relied upon by the plaintiffs was inconsistent with a registered Heba-bil-Ewaj deed of 1924. According to the Court, Abdul Aziz Kha, son of Isob Kha, had died during the lifetime of his father. Under the Muslim law of succession applicable at the relevant time, his son Julmat Kha could not directly inherit from his grandfather upon Isob Kha's subsequent death.
Legal Lessons:
1. Presumption regarding documents over 30 years old:
A document more than 30 years old, produced from proper custody, enjoys a statutory presumption of genuineness and due execution under Section 90 of the Evidence Act, 1872.
2. Minor clerical errors do not automatically invalidate an ancient deed:
A minor discrepancy in dates or calendar conversion is not, by itself, sufficient to establish fabrication.
3. A plaintiff must succeed on the strength of his own title:
A plaintiff cannot establish his own title merely by pointing out alleged weaknesses or defects in the defendant's documents.
4. A bare declaratory suit may be barred where the plaintiff is out of possession:
Where further relief, such as recovery of possession, is available, the plaintiff must seek that consequential relief.
5. Presumption attached to finally published khatian:
Under Section 144A of the State Acquisition and Tenancy Act, 1950, a finally published khatian carries a statutory presumption of correctness, which must be rebutted by convincing evidence.
Decision:
The High Court allowed the appeal and set aside the judgment and decree dated 8 January 2017 passed by the Joint District Judge, First Court, Munshiganj, in Title Suit No. 187 of 2009.
The appeal was allowed on contest against respondent Nos. 1–14 and ex parte against the remaining respondents, without costs.
BD Law Post/Masum
