TMI Blog1936 (9) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... eased. The decree-holders in two separate cases pleaded that Habib Baksh. had not, in fact, made any gift in favour of his wife and that, in any case, the gift, being in fraud of his creditors was void. The objections were dismissed. Mt. Kulsum Bibi came to this Court in appeal, and the case was remanded with a direction that the following two issues be determined and the cases disposed of in accordance with the findings thereon : (1) Did Habib Baksh make an oral gift in respect, of the houses in question in favour of Mt. Kulsum Bibi in lieu of her dower, as alleged by her, and whether the same was valid? (2) If the first issue is found in the affirmative, then was the gift made with a. view to defraud his creditors? 2. The trial Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. 3. Accordingly we hold, for the reasons given in the other case, that Habib Baksh made an oral gift of the property in dispute in this case to his wife, Kulsum Bibi, who, in her turn, relinquished her claim to prompt dower amounting to ₹ 21,000. There was some controversy as regards the amount of dower due to her. The trial Court found that it was ₹ 21,000, and we upheld that finding. We take the same view in the present case on that question also. On the second issue we held in the other case that it was a case of debtor giving preference to one of his creditors, and though the transaction had the effect of wholly or partly defeating the claims of other creditors, the gift could not be set aside as fraudulent. For the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bil-iwaz in India is, therefore, in reality not a proper hiba-bil-iwaz 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-iwaz. 4. We take this passage to mean that the 'hiba-bil-iwaz' known to Muhammadan Law, is made up of two distinct gifts, each party to the transaction being donor in one and donee in the other, with the result that the rule as to delivery of possession and the limitation imposed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason why two Muslims cannot, by an oral transaction, transfer to each other two properties, each in exchange of the other. Properly analysed, each makes a gift of his property to the other. By this means they secure the advantage of dispensing with instruments of gift. But, on the other hand, they subject themselves to certain disabilities imposed by Mahomedan law. For example, no gift can be made without delivery of possession, and when the subject of gift is undivided property the doctrine of 'musha' will stand in their way. If all the conditions required by the Mahomedan law of gift are fulfilled, it is not open to a party impugning the 'hiba-bil-iwaz' to say that in its result the transaction is an exchange of properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. It cannot be disputed that, if she had transferred her right to receive her dower to a third person without receiving consideration therefor, the transaction would have been a gift. It cannot be otherwise if the right is transferred to the husband himself. It is not a case of relinquishing a doubtful or disputed claim. It is clearly a case of a right to property; and if the wife extinguishes it and the husband has the benefit of her act by his corresponding liability being extinguished, we are of opinion that in its essentials the transaction can be properly called a gift by the wife to the husband. 6. We were referred to Hitendra Singh v. Maharaja of Darabhanga A.I.R. 1928 P.C. 1928 P.C. 112. In that case a Hindu husband transferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rately explained the implications of a true 'hiba-bil-iwaz' distinguishing it from the so-called 'hiba-bil-iwaz' in which there is a gift only by one of the parties in consideration of illusory return, such as natural love and affection and personal services. That case is an authority for the proposition that a gift in lieu of natural love and affection and services cannot be regarded as 'hiba-bil-iwaz' as natural love and affection or services cannot in their nature be the subject of a gift. Sarifuddin Muhammad v. Mohiuddin Mahammad AIR1927Cal808 is hardly an authority in support of the respondent's case. It was held in that case that to the true hiba-bil-iwaz' the doctrine of 'seizin' and 'musha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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