- Bookmark
- Share
- CaseIQ
Abbas Ali Shikdar v. Karim Bakhsh Shikdar And Ors.
Factual and Procedural Background
The plaintiffs filed a suit seeking recovery of certain land formerly owned by Asu Sikdar. They claimed that Asu Sikdar had transferred one quarter of the property to his wife, the 4th plaintiff, in lieu of dower, and the remaining three-quarters to the first three plaintiffs by a hiba bil ewaz in consideration of a copy of the Koran. The lower courts decreed the suit in favor of the plaintiffs, and the defendants appealed against this decision.
Legal Issues Presented
- Whether the transfer described as hiba bil ewaz in favor of the first three plaintiffs was valid or merely a simple gift requiring delivery of possession.
- Whether the verbal gift to the 4th plaintiff was valid, considering whether it was a gift or a sale/exchange and the applicability of the Transfer of Property Act.
- Whether delivery of possession was necessary for the validity of the transfer to the 4th plaintiff, given the nature of the transaction and statutory requirements.
Arguments of the Parties
Appellants' Arguments
- The so-called hiba bil ewaz in favor of the first three plaintiffs was actually a simple gift and thus ineffective without delivery of possession.
- The verbal gift to the 4th plaintiff was invalid either as a gift due to lack of delivery of possession or as a sale/exchange under the Transfer of Property Act.
Respondents' Arguments
- The consideration of a copy of the Koran is valid for the hiba bil ewaz, supporting the plaintiffs' claim.
- The verbal transfer to the 4th plaintiff was a valid gift not requiring delivery of possession under Mahomedan Law.
- The lower court correctly applied Section 129 of the Transfer of Property Act, which preserves Mahomedan Law rules on gifts.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mahomed Esuph Ravutan v. Pattamsa Ammal, 23 M. 70 | Held that in cases of gifts for consideration, transfer of seizin is not necessary under Mahomedan Law. | The court noted this decision but observed it predated the Transfer of Property Act and did not consider registration or applicability of the Act. |
| Khajooroonissa v. Rowshan Jehan, 2 C. 184; 26 W.R. 36; 3 I.A. 291 | Established that a deed of gift for consideration requires bona fide intention to divest the donor and confer property to the donee. | The court relied on this principle to analyze the nature of the transaction and the necessity of possession delivery. |
| Ghulam Mustafa v. Hurmat, 2 A. 854 | Supports the characterization of hiba bil ewaz transactions as sales under Mahomedan Law. | Used to affirm that the transaction should be treated as a sale subject to the Transfer of Property Act. |
| Suba Bibi v. Balgobind Dass, 8 A. 178 | Supports the classification of hiba bil ewaz as sales requiring compliance with statutory formalities. | Applied to confirm that the transfer must comply with Section 54 of the Transfer of Property Act. |
Court's Reasoning and Analysis
The court first rejected the appellant's contention that a copy of the Koran could not constitute valid consideration for the transfer. It then examined the nature of the verbal gift to the 4th plaintiff, concluding that the transaction was in fact a sale rather than a gift under Mahomedan Law. The court referred to authoritative texts and precedents to support the view that such transactions are sales requiring either registration or delivery of possession under Section 54 of the Transfer of Property Act, especially since the property value was less than Rs. 100.
The court noted that the lower court had treated the transaction as a gift governed by Section 129 of the Transfer of Property Act, which preserves Mahomedan Law rules on gifts without consideration. However, since the transaction involved consideration, that section was inapplicable. The court also observed that earlier decisions relied upon did not consider the impact of the Transfer of Property Act or registration requirements.
Ultimately, the court found that the lower court had not adequately considered whether possession had been delivered to the 4th plaintiff. It remanded the case for trial on this factual issue, stating that if possession was delivered, the plaintiffs would succeed entirely; if not, the appeal would succeed as to one quarter of the property.
Holding and Implications
The appeal is partly allowed and partly dismissed.
The court held that the verbal transfer to the 4th plaintiff constituted a sale requiring delivery of possession or registration. Since the question of possession delivery was unresolved, the case was remanded for trial on that issue. If possession is proved, the plaintiffs will be entitled to a decree for the entire property; if not, the appeal will succeed with respect to the quarter transferred to the 4th plaintiff.
The costs of the appeal will be apportioned accordingly, with three-quarters of the costs awarded to the respondents and the remainder to be decided after the remand. No new legal precedent was established beyond the application of existing principles regarding sales and gifts under Mahomedan Law and the Transfer of Property Act.
1. In this suit the plaintiffs sued for recovery of certain land, which formerly belonged to one Asu Sikdar, on the ground that Asu Sikdar had given one quarter of the property to his wife, the 4th plaintiff in lieu of dower, and the remaining three-quarters to the first three plaintiffs by a hiba bil ewaz in consideration of a copy of the Koran. The Counts below have decreed the suit and the defendants appeal.
2. The first point taken is that the so-called hiba bil ewaz in favour of the first three plaintiffs is not a hiba bil ewaz at all, but a simple hiba or gift, and, therefore, was in effectual in the absence of any delivery of possession. We have, however, been shown no authority for holding that a copy of the Koran is not a valid consideration for a transfer of this nature and we think that the appellant's contention with reference to this document cannot be supported.
3. The next point taken is that the verbal gift to the 4th plaintiff is invalid. It is argued that it is either a gift or a sale or exchange. If it is a gift, it is invalid by reason of the fact that possession was not delivered. If it is a sale or exchange, it is invalid under the provisions of the Transfer of Property Act.
4. It appears to us that the so-called gift was a sale. According to the plaint it was made in consideration of a dower debt of Rs. 49, and on account of right of inheritance." Such a transaction is usually described as a hiba bil ewaz with respect to which it is said in Baillie's Digest (p. 122, 2nd Ed.) that the transaction which goes by the name of hiba bil ewaz in India is not a proper hiba bil ewaz at all but a sale. A gift in lieu of dower is described as bye mokasa, which is also a sale. Under the Mahomedan Law these transactions do not require delivery of possession, but, if it be granted that they were sales, they must come within the provisions of Section 54 of the Transfer of Property Act. That they are sales seems to us to follow from the definition given in that section and besides the section the following authorities may be cited, namely, Macnaghten's Mahomedan Law, p. 217; Ghulam Mustafa v. Hurmat 2 A. 854; Suba Bibi v. Balgobind Dass 8 A. 178. If then this transaction was a sale, it could only be effected either by a registered instrument or by delivery, the property being less than Rs. 100 in value.
5. The Court below treats the transaction as a gift and holds that it comes within the operation of Section 129 of the Transfer of Property Act. That section lays down that nothing in the chapter of the Act which relates to gifts, shall affect any rule of Mahomedan Law. But that chapter could not in any case affect this transaction, inasmuch as it refers only to gifts without consideration, which the transaction under discussion certainly was not. The learned Subordinate Judge relies also on the decision in Mahomed Esuph Ravutan v. Pattamsa Ammal 23 M. 70 in which it was held, following Khajooroonissa v. Rowshan Jehan 2 C. 184; 26 W.R. 36; 3 I.A. 291 that in cases of this nature transfer of seizin is not necessary. But Khajooroonissa v. Rowshan Jehan 2 C. 184; 26 W.R. 36; 3 I.A. 291 was decided long before the Transfer of Property Act, and even then it was held that in the case of a deed of gift for consideration, there must be a bona fide intention on the part of the donor to divest himself in presenti of the property, and to confer it on the donee. The question whether the Transfer of Property Act was applicable was apparently not considered in Mahomed Esuph Ravutan v. Pattamsa Ammal 23 M. 70 nor is it stated whether the deed of gift in that case was registered or not.
6. In our opinion the verbal transfer in favour of the 4th plaintiff pleaded in this case was a sale, which being unregistered, could only be effected by delivery of possession. We do not think, however, that the learned Subordinate Judge had applied his mind to the question whether the 4th plaintiff obtained possession as is stated in the plaint. He appears to hold that, even assuming that possession did not pass, still the so-called gift was valid. The case must accordingly be remanded for the trial of the question whether possession was delivered. If it was, this appeal will wholly fail and the plaintiffs will be entitled to a decree. If it was not, the appeal will succeed with respect to a quarter of the property in suit. The respondents will be entitled to three-quarters of their costs in this appeal. The costs of this appeal with respect to one-quarter of the subject-matter will abide the result of the remand.
Alert