TMI Blog1950 (10) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ahmehman in Banaras. On 12-7-1919, he sold house No. 15/60 (new No. 42/12) to the appellant, Ghulam Abbas. The other house No. 15/61, at some time or the other, was given two numbers, No 15/61A (new No. 42/13) and No. 15/61 (new No. 42/14). It is said that there is an Imambara in the house and that portion of the house bears old No. 15/61, corresponding to new No. 42/14. As already stated, the plaintiff sought declaration in respect of house bearing new No. 42/13, which corresponds to old No. 15/61. 3. According to Sheikh Ghulam Abbas appellant's contention Amjad Ali Khan started Borrowing money in the year 1914, when he executed a mortgage in favour of certain persons. Then he sold one of his houses to the appellant. Thereafter, he executed another mortgage in 1925 and one more mortgage in 1927; and in order to pay off these mortgages, he executed a mortgage in favour of the appellant, on 27-7-1929, hypothecating the entire house No. 15/61. The money due on the last mortgage not having been paid, suit No. 32 of 1936 was instituted by the appellant in the Court of Civil Judge of Banaras. A preliminary decree was made on 28-5-1936; and it was made absolute on 6-2-1937. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ali v. Muzaffar Ali, 5 ALL. 65 : (1882 A.W.N. 175); Rahim Baksh v. Muhammad Hasan, 11 ALL. 1 : (1888 A. W. N. 266) and Saiful Bibi v. Abdul Aziz Khan, 1931 A. L. J. 951 : (A. I. R. (19) 1932 ALL. 596) was that such a transfer amounted to a sale; while in two later decisions in Mt. Kulsum Bibi v. Shiam Sunder Lal, A.I.R. (23) 1936 ALL. 600 : (1936 A.L.J. 1027) and Mt. Kulsum Bibi v. Bashir Ahmad, A. I. R. (24) 1937 ALL. 25 : (I. L. R. (1937) ALL. 285) a contrary view was taken. Consequently, the following question has been referred to a Full Bench: Whether an oral transfer of immovable property worth more than ₹ 100 can be made by a Muslim husband to his wife by way of gift in lieu of dower debt which also exceeds ₹ 100? Is such a transaction a gift or a combination of gifts such as can be made orally, or is it a sale which can be effected by means of a registered instrument only ? 8. In the present case, the Courts below have found, as a fact, that the amount of dower settled at the time of Amjad Ali Khan's marriage with Razia Begam was ₹ 15,000; and that the house in dispute was transferred orally by the husband to the wife in lieu of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent that the transfer is a combination of gifts, viz., a gift of immoveable property by the husband in favour of his wife and another gift of dower-debt by the wife to the husband, either of which could be made orally. 14. It is, however, not possible to treat the transaction as a combination of gifts. Obviously, it was a single transaction--a transfer of property by the husband in favour of the wife in consideration of the latter relinquishing an ascertained amount--₹ 2500 to be exact -- out of the amount of dower-debt due to her. As owner of the property, the husband was entitled to transfer, and admittedly transferred, the same to his wife. Such a transfer in whole or in part satisfaction of a debt is recognised by law and is not uncommon. The transfer as well as the liquidation of dower debt to the extent of ₹ 2,500 took place simultaneously in one and the same transaction; the two things were so inter-connected that one could not stand without the other. Consequently, the argument that the husband made a gift of property and the wife made a gift of a portion of dower-debt is unsound. The transfer in question is, therefore, not a combination of gifts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a certain extent of the second kind of ewaz mentioned in the Fatwai Alamgiri, viz., where it is stipulated in the contract. In tins kind of hiba-bil-ewaz the consideration 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. 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. 18. The distinction between the earliest and the modern form of hiba-bil-ewaz is important and has to be borne in mind in considering the nature of the transfer before us. The distinction has also been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash would be a transfer for a price so as to bring it within Section 54, T. P. Act. The use of the word price instead of money in the section signifies that the word is wide enough to include any amount which can be definitely ascertained and worked out in terms of money, such as outstanding debts. An owner of property may transfer the same in lieu of outstanding debts--and there is no legal bar against his doing so. Although debts are not money in the ordinary sense of the term, yet they can be worked out in terms of money. The dower is a debt--it has been so regarded even under the Mahommedan law; consequently, if the amount of dower is ascertained and the transfer is made in lieu thereof the transfer would be for a price. The transfer in question which is a hiba-bil-ewaz, under the Mahommedan law, having all the legal incidents of a sale, falls within the purview of Section 54, T. P. Act. 21. It follows, therefore, that the transfer in the present case is a hiba-bil-ewaz, a gift for consideration, having all the legal characteristics of a sale; and, inasmuch as the provisions of Section 54, T. P. Act, apply even to a sale transaction between Muslims, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e then was) and Banerji J. in their judgment observed : A transfer of property in lieu of an existing debt in cash would be a transfer for a price paid so as to bring it within Section 54, T. P. Act. If a question were to arise under the Mohamedan law we would have to look to what is meant by a hiba-bil-ewaz under that law. The question in this case however is under the Agra Pre-emption Act. Section 4(10) provides that a sale in the Pre-emption Act means a sale as defined in the Transfer of Property Act. In this way the Agra Pre-emption Act incorporates the definition of 'sale' as given in Section 54 of the latter Act, but the other provisions of that Act are not incorporated. All that we have to see here is whether the transfer of immovable property made in consideration of a part of an existing dower debt is a sale within the meaning of that definition. It has been held that a dower debt is a debt like every other debt, and therefore a transfer in lieu of it must be a sale as defined in that section. 26. On behalf of the appellant our attention has been invited to another decision of this Court in Ali Hasan v. Mt. Rashidan, A. I. R. (18) 1931 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (36) 1949 Pat. 237: (26 Pat. 561) the Patna High Court has held that an oral gift of immovable property by a Mahomedan in favour of his wife in lieu of dower debt is not a true hiba-bil-ewaz but a sale. 32. A similar view has been expressed by the Lahore High Court in Gopaldas v. Sakina Bibi, 16 Lah. 177 : (A. I. R. (23) 1936 Lah. 307) and by the Nagpur High Court in Zainab Bi v. Jamal Khan, I. L. R. (1949) Nag. 426: (1949 N..L. J. 480). 33. The two decisions of this Court in which a contrary view was taken, and to which reference has been made in support of the decisions of the Courts below, are reported in Mt. Kulsum Bibi v. Shiam Sunder Lal, A. I. R. (23) 1936 ALL. 600 : (1936 A. L. J. 1027) and Mt. Kulsum Bibi v. Bashir Ahmad, A. I. R. (24) 1937 ALL. 25 : (I.L.R. (1937) ALL. 285). In these oases one and the same transaction came up for consideration before the same learned Judges. 34. The facts of the first case briefly stated are these : On 26-8-1925, the decree-holder obtained a decree for ₹ 22,518 against one Habib Baksh and others. After the death of Habib Baksh the names of his widow, Kulsum Bibi, and some other persons were brought on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the terms of the gift, that change of possession would be sufficient to support it, even without consideration. Their Lordships did not decide whether the gift under consideration was hiba-bil-ewaz or sale, they seem to have regarded it as a hiba, or gift pure and simple. The question whether an oral gift in lieu of dower could or could not be made without a written and registered document did not arise in that case as it was decided before the Transfer of Property Act came into force. Rachhpal Singh, J. 36. realized that the precise legal position of a gift for consideration must lie midway between gift properly so-called and sale, but proceeded to observe : A Hiba-bil-Ewaz is a gift pure and simple. The donor gives something to the donee without any consideration whatsoever. If the donor, however, impelled by generosity or fellow-feeling, makes a return or 'ewaz' as a consideration or 'badal' of the gift and that 'ewaz' however valueless it might be, is accepted by the donor, the transaction becomes a hiba-bil-ewaz'.... When however, the gift is made for a stipulated consideration, it is a 'hiba-ba-shart-ul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it should be reduced to writing. Similarly relinquishment of a claim to dower can be made orally and no writing is necessary. 40. With due respect, I am unable to follow the reasoning. I have already shown above that a 'hiba-bil-ewaz' is a single transaction having all the characteristics of a sale, and it cannot be split-up into two distinct gifts. In the transaction, to repeat the words of Syed Ameer Ali, the consideration is directly opposed to the object of the gift, both being in ease; there is no suggestion of one being subsequent to the contract. The grant and the consideration are parts of one transaction. 41. The decision in the second case of Kulsum Bibi, (A.I.R. (24) 1937 ALL. 25 : I.L.R. (1937) ALL. 285) proceeds on the same reasoning. In that case, the same learned Judges discussed the passage in Baillie's Mohammedan Law, Vol. I, at p. 122, which has already been quoted in an earlier portion of this judgment, and observed : We do not think that, according to Baillie, if a transaction called 'hiba-bil-iwaz' has all the attributes of a true 'hiba-bil-ewaz' known to the Mahomedan law, lit should not be treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssented from and overruled. 45. In passing, I may also notice certain decisions of the Avadh Court, in which it was held that a hiba-bil-iwaz was not a sale within the meaning of Section 9, Oudh Laws Act (XVIII [18] of 1876). Under Section 9 of that Act the right of pre-emption is given in respect of the property to be sold or foreclosed . The Avadh cases are reported in Ram Prasad v. Rahat Bibi, 18 O. C. 367 : (A.I.R. (3) 1916 Oudh 273); Bashir Ahmad v. Mt. Zubaida Khatun, A. I. R. (13) 1926 Oudh 186 : (1 Luck. 83) and Talib Ali v. Kaniz Fatima Begum, A. I. R. (14) 1927 Oudh 204 : (2 Luck. 575). These cases need not detain us long because Ram Prasad's case, 18 O. C. 367 : (A. I. R. (3) 1916 Oudh 273) was followed in Bashir Ahmad's case A. I. R. (13) 1926 Oudh 186 : (1 Luck. 83) and the cases of Bashir Ahmad, (A.I.R. (13) 1926 Oudh 186 : 1 Luck. 83) and Talib Ali, (A. I. R. (14) 1927 Oudh 204 : 2 Luck. 575) were both dissented from by this Court in Saiful Bibi v. Abdul Aziz Khan, 1931 A. L. J. 951 : (A. I. R. (19) 1932 ALL. 596). 46. The transfer in the present case must, therefore, be held to be a sale within the meaning of Section 54, T. P. Act, which c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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