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Issues Involved:
1. Validity of the oral gift claimed by Mt. Kulsum Bibi. 2. Whether the gift was made to defraud creditors. 3. Applicability of the Transfer of Property Act to the oral gift. 4. Admissibility of oral evidence under Section 92 of the Evidence Act. 5. Rights of Mt. Kulsum Bibi as a creditor. Detailed Analysis: Issue 1: Validity of the Oral Gift The primary issue was whether Habib Baksh made an oral gift of the property to his wife, Mt. Kulsum Bibi, in lieu of her dower. The Subordinate Judge initially found no gift was made. However, the High Court disagreed, emphasizing that multiple witnesses confirmed the oral gift and a letter from Habib Baksh to the Cantonment Authorities supported this claim. The High Court concluded that there was indeed an oral gift, and no written deed was withheld by Mt. Kulsum Bibi. Issue 2: Whether the Gift was Made to Defraud Creditors The Subordinate Judge ruled that even if the gift were established, it was invalid as it was made to defraud creditors. The High Court found this reasoning flawed. It held that since the dower was a genuine debt, prioritizing it over other debts was not fraudulent. The High Court cited the Privy Council's decision in Musahar Sahu v. Hakim Lal, stating that a debtor can legally pay one creditor in full while leaving others unpaid. Issue 3: Applicability of the Transfer of Property Act The High Court examined whether the oral gift required a registered instrument under the Transfer of Property Act (T.P. Act). It was argued that the gift was a sale under Section 54 of the T.P. Act and thus required registration. The High Court rejected this, stating that under Mohammadan Law, a gift of immovable property can be made orally without a written and registered document. The Court cited precedents and legal texts supporting the validity of such oral gifts. Issue 4: Admissibility of Oral Evidence under Section 92 of the Evidence Act The Subordinate Judge had ruled that oral evidence was inadmissible due to the existence of a written document. The High Court disagreed, noting that Mt. Kulsum Bibi referred to a letter to the Cantonment Authorities, not a formal deed of gift. The High Court held that oral evidence was admissible and that the oral gift was valid under Mohammadan Law. Issue 5: Rights of Mt. Kulsum Bibi as a Creditor The High Court acknowledged that Mt. Kulsum Bibi was a creditor due to her dower. It emphasized that her right to the property was valid until her dower debt was paid. The Court also noted that the appellant could retain possession of the property, even if the transaction failed as a sale, as long as the dower was unpaid. Conclusion: The High Court reversed the Subordinate Judge's decision, holding that the oral gift made by Habib Baksh to Mt. Kulsum Bibi was valid under Mohammadan Law. The Court found no fraudulent intent to defraud other creditors and ruled that oral evidence was admissible. The objections of Mt. Kulsum Bibi against the attachment of the property were allowed, and she was entitled to retain possession of the property until her dower debt was paid. The appeal was allowed with costs in both courts.
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