Mohammad Usman Khan v. Amir Main

Ramaswami, J.:— In the suit which is subject of this appeal plaintiff asked for partition of ¼ share of certain lands. He claimed that he had purchased the share from Mt. Shahzadi, wife of Nazar Ali, by a registered sale deed dated 11th November 1940. The plaintiff alleged that Zul Mohammad, the admitted owner, died leaving four sons, defendants 1 to 3 and Nazar Ali, deceased husband of Mt. Shahzadi. The widow of Zul Mohammad, Mt. Parbatia, relinquished her interest in her husband's properties in favour of her sons who, therefore, obtained share each. Nazir Ali, one of the sons, made an oral gift of his share to his wife Shabzadi in lieu of her dower debt. On 11th November 1940 Mt. Shahzadi sold her share by registered sale deed to the plaintiff.

2. It was contended in defence that Nazar Ali predeceased Zul Mohammad after whose death Mt. Parbatia obtained 2 annas share. The remaining 14 annas share belonged to defendants 1 to 3 but since Mt. Parbatia's dower debt was unpaid, she was in possession over all the lands of Zul Mohammad. It was asserted that Mt. Shahzadi had no right to sell her alleged share. The trial Court held that Nazar Ali died, after Zul Muhammad, that Nazar Ali made an oral gift of his share to Mt. Shahzadi in lieu of her dower debt. He further found that Mt. Shahzadi was entitled to sell her share to the plaintiff. He accordingly decreed the suit.

3. The Subordinate Judge concurred with these findings of fact. But he held that since Nazar Ali made the gift to Mt. Shabzadi orally and not by a registered deed, Mt. Shahzadi did not acquire any valid title. With respect to 1 anna share which Mt. Shahzadi got by inheritance, the appellate Court held that the sale was operative and he accordingly granted a modified decree to the effect that the plaintiff was entitled to partition of one anna interest in the properties of Zul Mohammad.

4. Against this decree the plaintiff has instituted this appeal.

5. The main question to be determined is whether Nazar Ali could validly make an oral gift of properties to Mt. Shahzadi in lieu of her dower debt. The Calcutta High Court has adopted the view that such a transaction is not true biba-bil-ewaz but a sale, and so could be effected only by a registered instrument.

6. In Abas Ali Shikdar v. Karim Buksh Shikdar, 13 C.W.N 160 : (4 I.C 466), Asu Sikdar made an oral gift of 4 annas share of the disputed lands in favour of plaintiff 4 in full satisfaction of her claim for dower of Rs. 49 and for the share which she might have inherited from his estate. The learned Judges held that such a transaction, though usually described as hiba-bil-ewaz, was not a proper biba-bil-ewaz at all but a sale. If the transaction was a sale it should be effected by a registered instrument or delivery, the, property being less than Rs. 100 in value.

7. In Saburannessa v. Sabdul Sheikh, 38 C.W.N 747 : (A.I.R (21) 1934 Cal. 693), a Division Bench followed the case of Abbas Ali Shikdar and held that a gift of immoveable property in exchange for dower was not a gift but in reality a sale and had all the incidents of & contract for sale.

8. In Sarifuddin Mohammad v. Mohiuddin Mahammad, 54 Cal. 754 : (A.I.R (14) 1927 Cal. 808), there was transfer of certain properties in consideration of a promise by the donee to maintain the donor and to pay her Rs. 993 for that purpose annually and also to arrange for her nursing and proper treatment in case she fell ill. In the deed the transaction was described as hiba or gift but the learned Judges after consideration of several authorities, both textual and judicial, arrived at the conclusion that such a transaction was not a real hiba-bil-ewaz but was wrongly described as such and therefore they called it “a false biba-bil-ewaz”.

9. The Lahore High Court has also adopted the same view. In Fateh Ali Shah v. Muhammad Baksh, 9 Lah. 428 : (A.I.R (15) 1928 Lah. 516) one Md. Hamid Shah had executed a deed which purported to be a gift to his wife of certain ancestral property to which she was to have an absolute title. The transfer was stated to be in lieu of dower debt to the wife as well as her right of maintenance. The learned Judges held that although the transfer purported to be a deed of gift, it was really a hiba-bil-ewaz and was tantamount to a sale.

10. The Oudh and Allahabad decisions are conflicting and are difficult to reconcile. In the earlier cases, these Courts have held that the transaction was tantamount to a sale, but & different view has been adopted in later cases.

11. In Mt. Asalat Fatima v. Lala Shambhu Deyal, 11 I.C 928 : (14 O.C 214), the Oudh Court followed the Calcutta case of Abbas Ali Shikdar : (13 C.W.N 160 : 4 I.C 466) and held that a transfer by a Mohammadan of immoveable property in favour of his wife in lieu of dower debt was a sale and was covered by the provision of Section 54 of the Transfer of Property Act. In this case the plaintiff alleged that after her marriage to Kashif Hussain be made an oral gift of his share to her in lieu of dower debt. In Md. Zaki Khan v. Mannu Sahu, A.I.R (12) 1925 Oudh 407 : (28 O.C 227) one Jafar Khan made an oral gift of the property to his wife Mt. Maksuman Bibi in lieu of her dower debt. In this case also the Oudh Court held that the transaction came within the definition of sale under Section 64 of the Transfer of Property Act. They followed the decision of Mahmood, J. in Fida Ali v. Musaffar Ali, 5 ALL. 65 : (1882 A.W.N 175).

12. But in Bashir Ahmad v. Mt. Zubaida Khatun, A.I.R (13) 1926 Oudh 186 : (1 Luck. 83) the same Court held that when a Mohammadan husband transferred property to his wife in lieu of her dower debt and styled the transaction as gift, the transaction was heba-bil-ewaz and not a sale. In this esse, the learned Judges seemed inclined to think that a transaction could be a sale within the meaning of Section 54 of the Transfer of Property Act only when it was in lieu of money and that a claim for debt was a “chose in action”, and a transfer in lieu of an existing debt would not be a sale. With great respect, we are unable to agree. We consider that a transaction (transfer?) of property in lieu of an existing debt in cash would be a transfer for a price paid within the meaning of Section 54 of the Transfer of Property Act. The high authority of Mahmood, J. is in support of our view (Fida Ali v. Muzafjar Ali, 5 ALL. 65 : (1882 A.W.N 175). See also Bibi Janbi v. Hazrati Saheb, 12 I.C 457 : (21 M.L.J 958 and Eshahuq Chaudry v. Abedanissa Bibi, 42 Cal. 361 : (A.I.R (2) 1915 Cal. 785).

13. In Mt. Saiful Bibi v. Abdul Aziz Khan, 133 I.C 901 : (1931 A.L.J 951) the Allahabad High Court (Sir S.M Sulaiman, C.J and Banerji, J.) held that the transfer of immoveble property made in consideration of a part of an existing dower debt was a sale within the meaning of Section 54 of the Transfer of Property Act. The learned Judges differed from the view of the Oudh Chief Court in Bashir Ahmed v. Mt. Zubaida Khatun, A.I.R (13) 1926 Oudh 186.*

14. In Mt. Kulsum Bibi v. Shiam Sunder Lal, A.I.R (23) 1936 ALL. 600 : (164 I.C 515), the appellant Mt. Kulsum Bibi who was widow of Habib Baksh filed certain objections to attachment. She alleged that her husband had left an oral gift under which the property in question was gifted to her in lieu of her dower which amounted to a sum of Rs. 21,000. The Court held that the transaction was a true hiba-bil-ewaz and that such a gift could be made orally and without registration. Naimat Ullah, J. construed the transaction as being made up of two distinct gifts. On the one hand the husband made a gift of his property to his wife. On the other hand the wife made a gift of her dower debt to husband. The transaction was viewed as embodying two distinct gifts.

15. With great respect, we consider that the reasoning is somewhat strained and artificial. It is true that the English maxim “debitor non prosumitur donare” has little application as between husband and wife (Md. Sadiq Ali Khan v. Fakr Jehan Begum, 59 I.A 1 : (A.I.R (19) 1932 P.C 13.) But when a Mohammadan makes gift of property to his wife in lieu of dower debt, it appears to us that there is only one transaction in which the consideration is directly opposed to the object of the gift, both being in esse: there is no suggestion of one being subsequent to the contract. The grant and the consideration are parts of one transaction which is a sale in all its legal incidents.

16. It is at this stage convenient to deal with the Privy Council decision Kamarunnissa Bibi v. Hussaini Bibi, 3 ALL 266. In that case a Muhammadan proprietor had made oral gift of an estate to his wife in consideration of her dower of certain amount; two issues were raised, namely, whether the proprietor had transferred possession to his wife, and whether there was any consideration as alleged, namely, satisfaction of a due dower of Rs. 51,000. The trial Court held that there was no dower due, and that possession was not transferred to respondent. The High Court did not decide the question of existence of dower debt, but held that possession was transferred. On appeal, the Judicial Committee did not discuss whether the transaction was a true hiba-bil-ewaz or sale. But they appear to have thought that the transaction was a pure hiba valid even without any consideration if only there had been delivery of possession. This will be apparent from the following portion of judgment of Sir Montague Smith:

“If the possession was ohanged in conformity with the terms of the gift, that change of possession will be sufficient to support it even without consideration.”

17. We also notice that this decision is of the yeas 1880, prior to the passing of the Transfer of Property Act. No question of registration was argued and no issue was raised if the transaction was a true hiba-bil-ewaz or sale.

18. In our view the cursus curaia of the Calcutta and Lahore High Courts are correct. According to the original conception of the Mohammad an law a hiba-bil-ewaz is a gift with a subsequent consideration which 13 itself regarded as a gift ab initio. The true nature of a hiba-bil-ewaz is fully described in chap. VI, Book VIII of Baillie's Digest of Muhammadan Law, which is only an abbreviated reproduction of Fatwa Alamgiri:

“Hiba-bil-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 be 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 by either of the forms of the true hiba-bil-ewaz.”

19. To the true heba-bil-ewaz the doctrine of seisin and musha apply alike to the original gift and the gift in return but neither seisin nor musha apply to the false heba-bil-ewaz, because such a transaction is not a heba at all, and nothing more or less than a sale.

20. In our opinion, the transaction, which is the subject-matter of appeal is not a true heba-bil-ewaz but a sale as defined in Transfer of Property Act.

21. It is patent that the decision of the lower appellate Court is correct. We would affirm the decree of the lower appellate Court and dismiss this appeal with costs.

22. Manohar Lall, J.:— I have had the advantage of perusing the judgment prepared by my learned brother in which he has exhaustively reviewed the case-law of various High Courts bearing upon the question whether the hiba-bil-ewaz should be treated as a mere hiba or as a sale.

23. I should have thought that after the decision of their Lordships of the Judicial Committee in Hitendra Singh v. Rameshwar Singh, 55 I.A 197 : (A.I.R (15) 1928 P.C 112) in which the judgment was delivered by that eminent Muhammadan Jurist, Mr. Ameer Ali, there could be no possible controversy — that view was not novel but had been expressed by Mr. Ameer Ali in his well-known book on Muhammadan Law, 4th Edn., pages 162-163 and is in accord with the high authority of Hahmood, J. in Fida Ali, 5 ALL. 65 : (1882 A.W.N 175) and Rahim Baksh v. Mohamed Hasan, 11 ALL. 1 : (1888 A.W.N 266). But Mr. B.C De has been able to cite some contrary decisions of the Allahabad High Court and of the Oudh Chief Court which on investigation appear to be contradictory as has been shown by my learned brother.

24. This has led me to reconsider the important authorities bearing on the subject, and I have no hesitation in coming to the conclusion that it is not possible for us to treat the decision of Mr. Ameer Ali as a mere passing observation as was sought to be done in Mt. Kulsum Bibi v. Bashir Ahmad, A.I.R (24) 1937 ALL. 25 : (I.L.R (1937) ALL. 285).

25. The Calcutta High Court has consistently taken the view that hiba-bil-ewaz in lieu of dower is a sale from the year 1906 onwards: see Abbas Ali Shikdar, 13 C.W.N 160 : (4 I.C 466), Ishaq Chaudhuri, (1914) 42 Cal. 361 : (A.I.R (2) 1915 Cal. 785), Sarifuddin Mohammad, (1927) 54 Cal. 754 : (A.I.R (14) 1927 Cal. 808)—this contains an exhaustive review of the original texts on the subject, Saburannessa, (1934) 38 C.W.N 747 : (A.I.R (21) 1934 Cal. 693).

26. The Calcutta view has been adopted by this Court in Bibi Khudaizatul Kubra v. Krishna Pershad, 122 I.C 158 : (A.I.R (17) 1930 Pat. 530).

27. Lahore has also followed the Calcutta view: see Fateh Ali Shah, 9 Lah. 428 : (A.I.R (15) 1928 Lah. 516) where the earlier cases of the Lahore High Court and Lahore Chief Court have been considered.

28. The Madras High Court has also followed the Calcutta view and the earlier Allahabad view: see Bibi Janbi, (1911) 12 I.C 457 : (21 M.L.J 958).

29. I do not propose to examine the Oudh decisions, as they are mutually contradictory and are expressly dissented by Sir Shah Muhammad Sulaiman, C.J in Mt. Saiful Bibi, (1931) 133 I.C 901 : (1931 A.L.J 951) where Abbas Ali Shikdar v. Karim Buksh, 13 C.W.N 160 : (4 I.C 466), and the earlier Allahabad cases have been referred to with approval.

30. In Mt. Kulsum Bibi, A.I.R (24) 1937 ALL. 25 : (I.L.R (1937) ALL. 285) the learned Judges disposed of the decision of their Lordships in Hitendra Singh's case, 55 I.A 197 : (A.I.R (15) 1928 P.C 112) as follows:

“In that case a Hindu husband transferred some property to his wife by a registered instrument styled as a ‘hiba-bil-ewaz’. It was found that the transfer was in lieu of a substantial consideration. One of the parties contended: that the wife acquired no more than a life estate, because under the Hindu law a wife is presumed to have only a life interest in the property given to her by her husband. Their Lordships held that the rule of Hindu law was inapplicable inasmuch as the transaction was not one of gift but of transfer for consideration. Their Lordships observed that it was not a gift pure and simple ‘out a transfer for consideration, which was not illusory at substantial. They proceed to say ‘Under She Mahomedan law a transfer by way of a ‘hiba-bil-swaz’ is treated as a sale and not a gift. The limitation on alienation imposed by the Mithila law in the case of a gift by husband to wife applies exclusively to pure and simple gifts, and not to a gift for consideration such as in the present case. A passing reference to Mahomedan law in the circumstances in which it was made cannot, in our opinion, be construed as a dictum, to the effect that all transactions of ‘hiba-bil-ewaz’ are regarded by Mahomedan law as sales and not as gifts. The observation must be taken with due regard to the context in which it occurs and is no authority for the proposition contended for in the present case.”

31. With the utmost respect, I am unable to fritter away the observations of that eminent Muhammadan jurist, Mr. Ameer Ali, in the way as it is sought to be done by the learned Judges. It is to be observed that the nature of the transaction was prominent before Mr. Ameer Ali as appears from his reference to the transaction being a hiba-bil-ewaz in several places of his judgment: see pages 201, 204 and 205. Sir George Lowndes expressly developed the contrary argument at page 200.

32. On a review of the authorities, I am satisfied that the Calcutta view which has been adopted by this Court must be followed as it has now been impressed with the high authority of Mr. Ameer Ali. I have not referred to the texts and the quotations from other well known writers as they have been materially quoted in the judgment in Sarifuddin v. Mohiuddin, 54 Cal. 754 : (A.I.R (14) 1927 Cal. 808).

33. But Mr. B.C De relied strongly upon the case of Kamarunnissa Bibi, (1880) 3 ALL. 266 (P.C) where an oral gift professedly made in lieu of dower was held to be valid. If the facts of the case are examined, it will appear that the case arose before the Transfer of Property Act, 1882, was enacted, and, therefore, S. 54 could not govern that transfer. Moreover, it seems to have been accepted in that case that a transfer in lieu of dower could be made orally and further Sir Montague E. Smith, who delivered the judgment of the Board, was prepared to hold that if this possession had changed in conformity with the terms of the gift, that change of possession will be sufficient to support it even without consideration. I am unable to hold, therefore, that the case of Kamarunnissa Bibi v. Hussaini Bibi, 3 ALL. 266, in any way weakens the authority of the decision in Hintendra Singh's case, (55 I.A 197 : A.I.R (15) 1928 P.C 112. In the result, I would hold that the transaction in the present case is not a pure hiba but is a sale as defined in the Transfer of Property Act. I would dismiss this appeal with costs.

R.G.D

34. Appeal dismissed.