(In pursuance to an Order of Reference to the Bench by Chandra Reddi J. dated 7-11-1950, this appeal coming on for hearing, the Court delivered the following):

JUDGMENT

(Delivered by Chandra Reddi, J.)

This second appeal has come before us as it was referred to a Bench by one of us, having regard to the divergence of judicial opinion on the main point involved in the appeal.

Defendants 1 to 8 are the appellants in this second appeal. The facts, so far as is necessary to appreciate the question involved in the second appeal, may be briefly stated:

The suit house originally belonged to Khasim Peeran. This was built by him on a portion of a plot of land shown as A B C D E F G in the plan attached to the plaint. In the family division amongst the brothers, the site, on which the suit house is built, was allotted to Khasim Peeran and, subsequently, he built thereon the suit house. In discharge of a dower debt, Khasim Peeran transferred this house to his wife, Basiri Bibi. Basiri Bibi, in her turn, sold this house to the plaintiff in or about the year 1941 for a consideration of Rs. 250. After the death of Khasim Peeran, a creditor of his filed a suit on the foot of a promissory note, S.C No. 54 of 1941 on the file of the District Munsif's Court of Prodattur and obtained a decree thereon. In execution of the decree, ¼th share in ABCDEFG was sought to be attached. Thereupon, the defendants intervened with a claim petition, Ex. P. 5, which was allowed, with the consequence that what was sold was the site marked CDEF in the plan on which the suit house stood. This was purchased by the decree-holder himself. The defendants once again came forward with a claim petition for redelivery of the properties, as though they were once in possession and were dispossessed by the auction purchaser. Evidently, this was not resisted by the auction purchaser, with the result that the claim was allowed. Since the present plaintiff was not a party to that claim petition, another application, E.A No. 617 of 1943, which has given rise to this Second Appeal, was filed by the defendants impleading the present plaintiff as a party, for removal of obstruction and for re-delivery. This application, though it purports to be under S. 141 or 151 C.P.C, seems to be really one under O. 21 R. 100. Despite the opposition of the present plaintiff, the claim petition was allowed by the District Munsif of Prodattur and the plaintiff was directed to put the defendants in possession thereof. This led the present plaintiff to institute a suit for a declaration of his title to the property based on a sale deed executed by the widow of Khasim Peeran in his favour and also for a declaration that the property was not liable to be redelivered to the defendants.

The suit was resisted on various grounds, the chief of them being, that the plaintiff had no title to the suit property as the oral conveyance in favour of his vendor by her husband in consideration of her dower debt was not valid.

The trial Court, while holding that the transfer of the suit house in favour of his wife by Khasim Peeran in consideration of the former's dower debt is not valid, as it was not evidenced by an instrument duly registered decreed the suit on the ground that the plaintiff was entitled to a possessory lien till the dower debt of his vendor was discharged. In the result, a decree was granted in terms of the reliefs prayed for in the plaint.

On appeal by the defendants, the Subordinate Judge confirmed the decision of the trial Court, not only on the ground of possessory lien, but also on the additional ground that the transfer by Khasim Peeran of the suit property in favour of his wife, in consideration of her dower debt, was “hiba-bil-ewaz” and, therefore, though not evidenced by a registered instrument, was effective with the consequence, the vendor of the plaintiff had a valid title to the suit house, which he could convey to the present plaintiff. The defendants, who were aggrieved by this judgment, have preferred the present second appeal.

The main question that this second appeal raises is one touching the validity of the oral transfer of the suit house by Khasim Peeran to his wife in consideration of her dower debt. On this question, the preponderance of authority seems to be in favour of the view, that such a transaction is a sale within the meaning of S. 54 of the Transfer of Property Act and will not be valid unless it is accompanied by a registered document.

The leading case on the subject is Abbas Ali Shikdar v. Karim Baksh Shikdar(1) which is the foundation of several decisions not only of that Court, but also of other High Courts. There one Shikdar made an oral gift of a portion of his property in favour of his wife, both in satisfaction of her dower debt, and a share she would have on his death. The validity of the gift fell to be considered in the suit. When the matter went up in appeal to the High Court, a Bench of that Court regarded the transaction as a hiba-bil-ewaz, of India, though strictly, it was not a hiba bil-ewaz, and held that it was a sale governed by the provisions of S. 54 of the Transfer of Property Act, and not a pure hiba or gift.

This was followed in Satulal Bhattacharjee v. Asireddi Skeikh(2) and also in Sarifuddin Mahammad v. Mohiuddin Mahammad.

The same view was adopted by the Patna High Court also. In Mohammad Usman v. Amir Main a Bench of that Court held that such a transaction was a sale, failing within the scope of S. 54 of the Transfer of Property Act. This principle is affirmed by the Lahore High Court in a number of cases, and it is sufficient to refer to two of them. Faten Ali Shah v. Muhammad Baksh(3) and Gopaldas v. Mst. Sakina Bibi(4). In Paten Ali Shah v. Muhammad Baksh one Shah Muhammad executed a deed, which purported to gift to his wife certain of his properties, to which she was to have absolute title, in lieu of her dower debt as well as her right of maintenance. The learned Judges before whom the matter came up in appeal expressed the opinion that though the transaction was described as a gift, it was really a hiba-bii-ewaz, which was tantamount to a sale. This was followed by another Bench of that Court in Gopaldas v. Mst. Sakina Bibi.

In Zainab Bi v. Jamal Khan(5) a Bench of the Nagpur High Court held that a transfer of immovable property by a Muhammadan husband in favour of his wife, in discharge of her dower debt, was a sale and not a pure hiba or gift.

We may now refer to a decision of our High Court in Rabijanbi v. Hazarath Sahib(6). In that case, under a registered instrument, a Muhammadan husband conferred a life-estate on his wife in some property in consideration of the latter's dower debt and which had to devolve on her death on his heirs. After her death, her granddaughters claimed that property, under a gift deed from her, on the ground that under the Shafi school of Muhammadan law, a gift for life could not be made and, therefore, such a gift should be construed as a gift of an absolute estate. Sundara Aiyar and Phillips JJ. before whom the appeal came on for hearing, though that it was unnecessary to decide that question as in their opinion, it was not a gift but a sale and, therefore, a life estate could be conveyed under that document. This is what they observe at page 960:

“It has been decided both by this Court and by other High Courts that a transfer of property to a Muhammad in lady for a term by her husband in consideration of dower must be regarded as a sale—See Sahiba Begum v. G. Btchamma(7) Ghulam Mustafa v. Huramt(8) Abbas Ali Shikdar v. Karim Baksh Shikdar(9) and also Baillie's Digest p. 122. Such a transfer was regarded as unimpeachable in Mubarak Karim v. Nissa(10). There is nothing in the Muhammadan law, so far as we are aware, against the legality of such a transfer.”

A different note was struck in some of the decisions of the Allahabad High Court, though the statement of law contained in earlier rulings of that Court is in accordance with the principle stated above. In Faidy Ali v. Muzaffar Ali(11) Mahmood J. delivering the judgment behalf of the Bench, held that a transfer of immovable property by a Muhammadan husband in favour of his wife in consideration of her dower debt was a sale giving rise to a right of pre-emption. The same view was shared by Sulaiman C.J and Banerji J. in Saiful Bibi v. Abdul Aziz Khan(12). The learned Judges decided that transfer of property made in lieu of an existing debt in cash would be a transfer for price, so as to bring it within the meaning of S. 54 of the Transfer of Property Act

But in Kulsum Bibi v. Shiam Sundttrlal(13) a Bench of the same High Court differed from the earlier view and came to the conclusion that a transaction called “hiba-bii-ewaz” was not a sale but a gift. The grounds, upon which the learned Judges reached that decision, was that the transaction involved two reciprocal gifts (i) gift of immovable property by the husband in favour of the wife, and (ii) gift by the wife of her dower debt in favour of the husband and secondly, in Kamarunnissa Bibi v. Hussaini Bibi the Judicial Committee decided that a transfer of immovable property in favour of his wife in discharge of the dower debt was not a sale but a gift.

We shall first refer to the decision of the Judicial Committee in Kamarunnissa Bibi v. Hussaini Bibi. In that case, two issues were raised (i) whether there was consideration for the transfer of property and (ii) whether the gift was accompanied by delivery of possession of the property. The trial Court held that there was neither consideration for the transfer nor delivery of possession and therefore no title passed to the wife. On appeal, the High Court held that though there was no consideration for the transaction, the gift was valid, in as much as the donee was put in possession of the property. On further appeal to the Privy Council, their Lordships of the Judicial Committee held that it was valid, both as a gift for consideration and also as a pure gift, since the gift was accompanied by delivery of property. At page 268 of the report, their Lordships observed that, if the possession was changed in conformity with the terms of the gift, that change of possession would be sufficient to support it, even without consideration. It is thus clear that their Lordships were not considering the question whether the hiba was a sale, and, therefore, required registration, or was merely a gift. All that their Lordships decided was that the transaction was in either way a valid one. Further, it must be remembered that this decision was given prior to the enactment of the Transfer of Property Act. So, we do not see how this decision can lend any support to the view taken by the learned Judges in Kulsum Bibi v. Shiamsundar Lal.

As regards the ground that the transaction involved two reciprocal gifts, we do not think there is any basis for the view. It looks to us that there is only one transaction, both the transfer of property and the discharge of the dower debt forming parts of the same transaction. In dealing with the question whether it involved two reciprocal gifts or was only one transaction, Ameer Ali in his book on Muhammadan law (4th Edn) vol. 1 page 162 states:

“And the rules stated above do not, therefore, apply to what in modern times is called a hiba bil ewaz, which is a transaction of quite a different Dature and partakes to a certain extent of the second kind of ewaz mentioned in the Fatawai Alamgiri viz, where it is stipulated in the contract. In this kind of Hiba bil ewaz the consideration is directly opposed to the object of the gift, both being in cage; there is no suggestion of one being subsequent to the contract. The grant and the consideration are parts of one transaction. A hiba bil ewaz, therefore, is a sale in all its legal incidents. In sale, mutual seisin is not requisite to render the contract valid and the terms in which a contract of this kind is entered into imply “that the articles opposed to each other are present” and that there is no danger of either party suffering from the other's fraud. “I have given you this for that” implies that the consideration is present, and that the person will take care to receive it before parting with his property and the law therefore annexes to it the quality of a sale both with regard to the condition and the effect.”

It is thus clear that a transfer of immoveable property by a Muhammadan husband in favour of his wife for her dower debt does not involve two reciprocal gifts but is only one contract.

It is not necessary to refer to the various decisions, which have dealt with this question and laid down that both the acts form only one transaction and that they do not involve two reciprocal gifts.

This ruling of the Allahabad High Court in Kulsum Bibi v. Shiamsundar was followed by another Bench of the same Court in Mt. Kulsum Bibi v. Bashir Ahmed. The reasoning adopted by the learned Judge was in effect the same as in Kulsum Bibi v. Shiamsundar and it is not therefore necessary to deal with it.

The conflict between the earlier view and the later view of the Allahabad High Court was resolved by a Full Bench of the Allahabad High Court in Ghulam Abbas v. Razia Begum. In that case, there is a learned discussion of the subject and all the leading cases are collected. The opinion expressed by the Full Bench is in conformity with the view prevailing in the High Courts of Calcutta, Patna, Lahore, Nagpur etc. The learned Judges overruled the two Bench decisions of the Allahabad High Court in Kulsum Bibi v. Shiam Sundar and Kulsum Bibi v. Bashir Ahmed. It was laid down there that the dower debt, when ascertained, was a debt the discharge of which will amount to payment of “price” within the meaning of S. 54 of the Transfer of Property Act, and therefore the transfer for consideration of such a debt is a sale, which requires a written instrument duly registered.

We shall now turn to the decisions of the Lucknow Court, whose view is similar to that taken in Kulsum Bibi v. Shiam Sundar and Kulsum Bibi v. Bashir Ahmed. We may first refer to the decision of that Court in Bashir Ahmad v. Mst. Zubeida Khatun. In that case, the question that arose for consideration was whether the transfer of immovable property by a Muhammadan husband in favour of his wife in consideration of her dower debt is subject to the right of pre-emption. The learned Judges held that a Muhammadan wife entitled to property under such a transaction was not entitled to the right of pre-emption as, in their opinion, the transaction was not a sale. This decision is based both on Kamarunnissa Bibi v. Hussaini Bibi, and on the dictum that the discharge of the dower debt is not a price within the meaning of S. 54 of the Transfer of Property Act. According to the learned Judges, the claim for a debt, being a “chose in action” no payment of money or promise to pay money is involved in the transaction. The learned Judges observe thus:

“A claim for a debt is a “chose in action” and has well known legal incidents—See Ryall v. Rowles and notes under it in White and Tudor's leading cases. Vol. I page 98, 8th Edn. Where does then payment of money or a promise to pay money come in this transaction? Nowhere.”

We do not think that we can agree with the learned Judges in their conclusion that the discharge of an existing debt, which is an ascertained sum does not amount to a price within the meaning of S. 54 of the Transfer of Property Act. Suffice it to say that, in a number of cases, the expression price came to be judicially interpreted and the opinion expressed by learned Judges in the various cases was that the discharge of a pre-existing liability, if it is an ascertained sum is “price” within the meaning of S. 54 of the Transfer of Property Act. Vide Saiful Bibi v. Abdul Aziz Khan and Madam Pillai v. Badrakali Ammal.

In Bashir Ahmed v. Mst. Zubeida Khatun, the learned Judges quote the following passage from Hedaya:

“If a man marries a woman without settling on her any dower and afterwards settles on her a house as a dower the privilege of shuffa does not take place, the house being considered in the same light as if it had been settled on the woman at the time of marriage. It is otherwise where a man ‘sells’ his house in order to discharge his wife's dower either proper or stipulated: because here exists an exchange of property for property.”

Then, they posed the question “what difference in principle can it make whether the property is transferred as dower, or, in lieu of dower”. We have only to observe that they have overlooked the difference, which is an obvious one. In one case, i.e, where the property transferred is by way of dower, no question of any fixation of price arises because the property itself is given as dower and there is no transfer of any property in exchange for a price, whereas in the other case of dower, the property is exchanged for a price. In the latter case, the price is an ascertained sum of money, which was payable to the vendee. The decision Chaudhri Talib Ali v. Mst. Kaniz Fatima Begum, followed the earlier decision in Bashir Ahmed v. Mst. Zubeida Khatun. It may be observed that these two decisions are in conflict with some of the earlier rulings of that Court In this context, we may quote the observations of the Judicial Committee of the Privy Council in Hitendra Singh v. Maharajah of Darbanga: “Under Muhammadan law, a transfer by way of hiba bil ewaz is treated as a gift.” We may now usefully refer to a passage from Baillee's Digest of Muhammadan Law, which is only an abbreviated reproduction of Fatwa Alamgiri:—

“Hiba-bii-ewaz means, literally, gift for an exchange and it is of two kinds, according as the ewaz or exchange is, or is not, stipulated for at the time of the gift. In both kinds, there are two distinct acts; first, the original gift, and second, the ewaz or exchange. But in the hiba bil ewaz of India, there is only one act; the ewaz or exchange, being involved in the contract of gift as its direct consideration and all are agreed that if a person should say “I have given this to thee for so much, it would be a sale; for the definition of sale is an exchange of property and the exchange may be effected by the word “give” as well as by the word “sell”. The transaction, which goes by the name of hiba bil ewaz in India is, therefore, in reality not a proper hiba bil ewaz of either kind, but a sale and has all the incidents, of the latter contract. Accordingly, possession is not required to complete the transfer of it though absolutely necessary in gift and what is of great importance in India, an undivided share in property capable of division may be lawfully transferred by it, though that cannot be done or by either of the forms of the true hiba bil ewaz.”

On these authorities both judicial and textual, we have come to the conclusion that the hiba bil ewaz so called in India is a sale within the meaning of S. 54 of the Transfer of Property Act and unless made by a written instrument, duly registered, will not convey title to the person, in whose favour such a conveyance is made and an oral conveyance of immovable property worth more than Rs. 100 to the wife by a Muhammadan husband is not valid.

On behalf of the respondents, Mr. Kuppuswami tried to support the judgment of the lower appellate Court that such a transaction is not a sale. The learned Counsel adopted the reasoning of the learned Judges in Kulsum Bibi v. Shiam Sundar and Kulsum Bibi v. Bashir Ahmed, and the Lucknow cases, which have been referred to. It is not necessary for us to deal with these arguments as we have already disposed of the same, while dealing with the decisions in Kulsum Bibi v. Shiam Sundar, and the intermediate Allahabad view and the Lucknow view.

In addition Mr. Kuppuswami relied on a decision of this Court in Madam Pillai v. Badrakali Ammal. According to the learned Counsel, the ruling in Madan Pillai v. Badrakali Ammal, is authority for the proposition that actual payment of money is necessary to constitute “price” within the meaning of S. 54 of the Transfer of Property Act. We do not think we can agree with this argument. All that is laid down in Madam Pillai v. Badrakali Ammal, is:

“Price includes money only, for if the thing given in exchange for land consists of goods and not money there is no sale but an exchange. A transfer not made in exchange for a money consideration e.g a transfer made in pursuance of a compromise of a family dispute would not be a sale and might be altogether outside the provisions of the Act.”

Far from supporting the contention of the learned Counsel, it lays down that price can be the discharge of a pre-existing debt. The observations of the learned Chief Justice at page 617 disposes of this contention of Mr. Kuppuswami.

“Now, price has a well defined meaning. It means money but not necessarily money handed over in current coin at the time but includes money, which might be already due or might be payable in the future.”

The ruling in Muhammad Esuph Ravutan v. Pattammn Ammal, is relied on for substantiating the contention that hiba bil ewaz is not a sale but a gift. We do not think there is any scope for this contention because nowhere in the decision is any such statement of law made. Ali that was decided there was that a gift for consideration could be valid even though it was not accompanied by delivery of possession of the property. They described such a transaction as a gift for consideration, which can only mean a sale. The passage in that judgment, which was called in aid by Mr. Kuppuswami is this:

“That in such a case transfer of seizin is unnecessary is dear from the Privy Council case of Ranee Khujooroonissa v. Mst. Roushan Jena, cited for the respondent. The Muhammadan law rules relating to sales and exchanges, on which the appellant's vakil laid much stress have really no bearing in a case like this”

We do not think this passage can give rise to the contention that hiba bil ewaz is not a sale within the meaning of the Transfer of Property Act. There, it was decided that though the donee was not put in possession of the property, a valid title passed to the donee. That can only be on the basis that it was not a gift but a transaction supported by consideration, i.e, a sale.

Mr. Kuppuswami next urged the Ameer Ali in his book on Muhammadan Law (4th Edn) at page 713 said that the decision of Mahmood J. in Faida Ali v. Muzaffar Ali, is erroneous. The relevant passage at page 713 may be extracted:

“When a property is conveyed to a wife in discharge of the dower debt, there is also no right of pre-emption. But when a house is sold to a third person in order to enable the husband to satisfy with the proceeds thereof the dower of his wife, the right of preemption comes into operation.”

At the footnote, it is added that the decision in Fida Ali v. Muzaffar Ali appears to proceed on a wrong interpretation of the law. In this case, it must be remembered that the learned author was dealing with the question whether a conveyance of immovable property in favour of his wife in discharge of dower debt gives rise to a right of preemption. We are not concerned in this case with the question whether such a transaction is subject to the right of preemption. So, it is unnecessary for us to consider, which of the two views is correct. The reason of the learned author for the view that such a transaction is not subject to the right of preemption is stated in the following words:

“The wife conveying to the husband and vice versa do not thereby introduce a stranger among co-sharers or neighbours.”

Our decision is confined to the question whether it is a sale within the meaning of S. 54 of the Transfer of Property Act.

Next reliance was placed by Mr. Kuppuswami on a passage in Mulla's Transfer of Property Act, at page 297 (3rd Edn). Referring to the decisions, which have taken the view that such a transaction as involved in this case, is sale within the meaning of S. 54 of the Transfer of Property Act, the learned author remarked thus:

“Put in some cases such a transaction has been held to be a sale on the ground (submitted to be erroneous) that the extinction of the dower debt is equivalent to the payment of price”

Despite the high authority of the book and the great respect we have for the learned author, we are afraid we cannot agree with the opinion that these decisions are erroneous. In this context we may refer to a passage at page 305 in the same book.

“The transaction called the hiba bil ewaz of India has been held to be a sale, so that if the property is immovable property of the value of Rs. 100 or upwards, it must be effected by a registered instrument.”

At this place, the learned author does not express only opinion of his.

In this situation, we have to reject the contention put forward on behalf of the respondents. It follows that the view of the lower appellate Court that the transaction is valid, despite its not having been evidenced by a registered instrument cannot be sustained. Therefore the suit of the plaintiff, so far as it claims declaration of his title based on the oral sale in favour of the vendor by her husband is concerned, should fail.

But this does not dispose of this appeal. We have next to consider whether the order in E.A No. 617 of 1943 is sustainable, or, has to be vacated. On the findings that the plaintiff and his vendor were in possession of the property throughout, i.e, ever since the transfer of the property to the plaintiff's vendor by Khasim Peeran and that the plaintiff and his vendor have remained in possession of the property, we do not think that the summary order directing the removal of the obstruction, said to have been caused by the plaintiff and the redelivery of the property is sustainable. We do not understand how the defendants could maintain an application either under O. 21 R. 97 or O. 21 R. 100 of the C.P.C It must be remembered that they were never in possession of the suit property. Hence they have no right to maintain an application either under O. 21 R. 97 or O. 21 R. 100 C.P.C In this view of the matter, it is unnecessary for us to decide whether even otherwise, E.A No. 617 of 1943 was not liable to be rejected.

In this second appeal, it is not necessary for us to consider whether the plaintiff is entitled to be in possession of the property till the vendor's dower debt is discharged and whether the plaintiff has got a possessory lien or not. This question may be relevant in other proceedings, i.e, when the defendants seek to dispossess the plaintiff. Consequently, the order of the District Munsif in E.A No. 617 of 1943 has to be vacated with the result that the plaintiff is allowed to retain possession of the property till he is dispossessed in other and appropriate proceedings. The decrees of the Courts below will be confirmed subject to the deletion of clause 1 of the trail Court's decree. In view of the fact that the plaintiff has succeeded partially, we think it is desirable that the parties bear their respective costs throughout.

V.C.S