9911796707
|
Home
Issues Involved:
1. Validity of an oral transfer of immovable property worth more than Rs. 100 by a Muslim husband to his wife in lieu of dower debt. 2. Classification of the transfer as a gift (hiba), combination of gifts, or a sale (hiba-bil-ewaz). 3. Applicability of Section 54 of the Transfer of Property Act, 1882, to such transfers. Detailed Analysis: 1. Validity of an Oral Transfer of Immovable Property Worth More Than Rs. 100 by a Muslim Husband to His Wife in Lieu of Dower Debt The primary issue in this case is whether a Muslim husband can validly transfer immovable property worth more than Rs. 100 to his wife orally in lieu of her dower debt, which also exceeds Rs. 100. The courts below found that the transfer was made by Amjad Ali Khan to Razia Begam as a gift in lieu of Rs. 2500 of her dower debt. The appellant, Sheikh Ghulam Abbas, contested this, arguing that such a transfer is void and ineffectual without a registered document. 2. Classification of the Transfer as a Gift (Hiba), Combination of Gifts, or a Sale (Hiba-bil-ewaz) The courts below held that the transfer was a gift and not a sale, and thus could be made orally under Mahommedan Law. However, the Division Bench referred the matter to a Full Bench, questioning whether such a transfer is a gift or a sale requiring a registered instrument. The Full Bench analyzed the nature of the transaction under Mahommedan Law, which classifies gifts into three types: - Hiba, pure and simple - Hiba-bil-ewaz (a grant or gift for consideration) - Hiba ba-shart-ul-ewaz (a grant made on the condition of future or periodic payments) The Full Bench concluded that the transfer in question was not a pure and simple gift but a hiba-bil-ewaz, a gift for consideration, which is essentially a sale under Mahommedan Law. 3. Applicability of Section 54 of the Transfer of Property Act, 1882, to Such Transfers The Full Bench examined whether the transfer amounted to a sale under Section 54 of the Transfer of Property Act, 1882. According to this section, a sale is defined as a transfer of ownership in exchange for a price paid or promised. The court noted that the term "price" is broad enough to include any amount that can be ascertained in terms of money, such as outstanding debts. Since dower is considered a debt under Mahommedan Law, the transfer in lieu of dower debt constitutes a sale. The court referred to various precedents, including Fida Ali v. Muzaffar Ali, Rahim Baksh v. Muhammad Hasan, and Saiful Bibi v. Abdul Aziz Khan, which supported the view that such transfers are sales within the meaning of Section 54, T.P. Act. The court also dissented from the contrary view expressed in Mt. Kulsum Bibi v. Shiam Sunder Lal and Mt. Kulsum Bibi v. Bashir Ahmad, emphasizing that the provisions of Section 54, T.P. Act, apply to sale transactions between Muslims. Conclusion: The Full Bench concluded that an oral transfer of immovable property worth more than Rs. 100 by a Muslim husband to his wife in lieu of dower debt exceeding Rs. 100 is not valid. Such a transaction is neither a gift nor a combination of gifts that can be made orally; it is a sale that requires a registered instrument as per Section 54 of the Transfer of Property Act, 1882. Judgment: The question referred to the Full Bench is answered as follows: "An oral transfer of immovable property worth more than Rs. 100 cannot be validly made by a Muslim husband to his wife by way of gift in lieu of dower-debt which also exceeds Rs. 100. Such a transaction is neither a gift nor a combination of gifts which can be made orally; it is a sale which can be effected by means of a registered instrument only." The papers were ordered to be laid before the Bench concerned for further proceedings.
|
