TMI Blog1947 (8) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... onged 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. 3. The trial Court held that Nazar Ali died after Zul Mohammad, that Nazar Ali made an oral gift of his share to Mt. ShahzMi 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. 4. 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. 5. Against this decree the plaintiff has instituted this appeal. 6. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lala Shambhu Deyal 11 I.C. 928, the Oudh Court followed the Calcutta case of Abbas Ali Shikdar 13 CWN 160 and held that a transfer by a Mohammadan of Immovable property in favour of his wife in lieu, of dower debt was a sale and was covered by the provision of Section 54, T.P. Act. In this case the plaintiff alleged that after her marriage to Kashif Hussain he made an oral gift of his share to her in lieu of dower debt. In Md. Zahi Khan v. Mannu Sahu 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 54, T.P. Act. They followed the decision of Mahmood J. in Fida Ali v. Muzaffar Ali 5 ALL 65. 13. But in Bashir Ahmad v. Mt. Zubaida Khatun A.I.R. 1926 the same Court held that when a Mohammad an 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 case, the learned Judges seemed inclined to think that a transaction could be a sale within the meaning of Section 54, T.P. Act only when it was in lieu of money and that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cil decision Kamarunnissa Bibi v. Hussaini Bibi 8 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 ₹ 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 changed in conformity with the terms of the gift, that change of possession will be sufficient to support it even without consideration. We also notice that this decision is of the year. 1880, prior to the passing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave 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 AIR 1928 PC 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 Mahmood J. in Fida Ali 5 ALL. 65 and Bahim Bahsh v. Mohamed Hasan 11 All. 1. 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. Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent 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-iil-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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