1. I do not agree with the view of law taken by the learned Judge of the lower appellate Court that a transfer by a Muhammadan in lieu of a certain dower debt does not amount to a sale. In the present case the plaintiff, son of one Jahangir, who was the son of Mt. Misran Bibi, sued for his share of a certain house on the death of Mt. Misran Bibi. Jahangir had predeceased Misran Bibi. The defence of plaintiff's stepmother Mt. Batulan, Jahangir's second wife, was that the house had been gifted to her. This defence is put forward in a somewhat inartistic manner in para. 3 of Mt. Batulan's written statement:
“This defendant was not willing to marry, and she gave her consent only when it was agreed upon that in lieu of her dower debt the father of the plaintiff and Mt. Misran Bibi would give her the house in dispute. Accordingly, in lieu of her dower debt, the plaintiff's father and Mt. Misran Bibi gave her the house in dispute and put her in possession thereof.”
2. The house was the property of Mt. Misran Bibi, so Jahangir had no interest therein which he could transfer, and Mt. Misran Bibi was not bound to pay the dower debt and therefore the transfer by her could not have been in lieu of dower debt. In my opinion the second view taken by the lower appellate Court is correct, that the transfer was a gift by Mt. Misran Bibi in order to induce Mt. Batulan to marry Jahangir whose first wife had died before then. Taking this view of the case the transfer was a gift pure and simple. The objection therefore, that the transfer being a sale ought to have been evidenced by a reg sterol and stamped deed, does not arise and the plaintiff cannot lay any claim to the house.
3. The respondent's counsel raised the plea of adverse possession that the holder of property in pursuance of an ??? sale must be considered to be a trespasser; this plea will be of no avail to him because the suit has been brought within twelve years of Mt. Batulan's marriage.
4. It appears to me that the Oudh ruling, Talib Ali v. Kaniz Fatima Begam (1), quoted by the lower Court, is in conflict with the ruling of this Court reported as Fida Ali v. Muzaffar Ali (2) which is entitled to particular respect and it is the judgment of a very eminent Muhammadan jurist. At p. 69 of the report the distinction is drawn between assignment of property to a wife as her dower in which case there will be no sale and the transfer of property to a wife in payment of a certain amount of dower, in which case it would be a sale.
5. This view was accepted by a Bench of the Calcutta High Court in 1906 in Abbas Ali v. Karim Bakhsh Shikdar (3). It is however not necessary to enter into a detailed discussion of this matter having regard to the view of the transaction taken by me.
6. This appeal fails and is dismissed with costs.
K.N/R.K
7. Appeal dismissed.