1951 (12) TMI 18 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the oral transfer of the suit house by Khasim Peeran to his wife in consideration of her dower debt.
2. Whether the transaction is a sale under Section 54 of the Transfer of Property Act.
3. The applicability of Order 21, Rule 97 or Order 21, Rule 100 of the Civil Procedure Code (CPC) regarding possession and redelivery of property.
4. The plaintiff's right to possessory lien until the dower debt is discharged.

Issue-wise Detailed Analysis:

1. Validity of the Oral Transfer:
The main question in this second appeal is the validity of the oral transfer of the suit house by Khasim Peeran to his wife in consideration of her dower debt. The preponderance of authority supports the view that such a transaction is a sale within the meaning of Section 54 of the Transfer of Property Act and will not be valid unless it is accompanied by a registered document.

2. Whether the Transaction is a Sale:
The leading case on the subject, 'Abbas Ali v. Karim Baksh', established that such transactions are sales governed by Section 54 of the Transfer of Property Act. This view is supported by various High Courts, including Calcutta, Patna, Lahore, and Nagpur. The transaction, termed "hiba-bil-ewaz" in India, is essentially a sale and requires a registered document to be valid. The Allahabad High Court's earlier decisions aligned with this view, but later decisions like 'Mt. Kulsum Bibi v. Shiam Sunder Lal' diverged, considering it a gift. However, a Full Bench of the Allahabad High Court in 'Ghulam Abbas v. Razia Begum' reaffirmed that such a transaction is a sale requiring registration.

3. Applicability of Order 21, Rule 97 or Order 21, Rule 100 of CPC:
The court found that the defendants could not maintain an application under Order 21, Rule 97 or Rule 100 of the CPC, as they were never in possession of the suit property. Therefore, the summary order directing the removal of the obstruction and redelivery of the property was unsustainable.

4. Plaintiff's Right to Possessory Lien:
The court did not find it necessary to decide whether the plaintiff is entitled to possess the property until the vendor's dower debt is discharged or whether the plaintiff has a possessory lien. This issue may be relevant in other proceedings when the defendants seek to dispossess the plaintiff.

Conclusion:
The court concluded that the oral transfer of immovable property worth more than Rs. 100 to the wife by a Muhammadan husband is not valid unless made by a written instrument duly registered. Consequently, the plaintiff's suit for a declaration of title based on the oral sale was unsustainable. However, the order in E.A. No. 617 of 1943 was vacated, allowing the plaintiff to retain possession of the property until dispossessed through appropriate proceedings. The decrees of the lower courts were confirmed, subject to the deletion of Clause 1 of the trial court's decree. Each party was ordered to bear their respective costs throughout.