9911796707
TMI Blog1936 (3) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... Subordinate Judge dismissed the objections of Mt. Kulsum Bibi on 28th February 1931. Against that order, Mt. Kulsum Bibi preferred an appeal which came up for hearing before a Bench consisting of my learned brother Niamatullah, J. and myself. We came to the conclusion that there had been no proper enquiry into the matter in controversy between the parties and we therefore remanded the case to the Court below to hear the parties again and then give findings on the following issues: Issue 1. Did Habib Baksh make an oral gift in respect of the house in question in favour of Mt. Kulsum Bibi, in lieu of her dower, as alleged by her and whether the same was valid and provable? Issue 2. If the first issue is found in-affirmative, then was the gift made with a view to defraud his creditors? 2. The learned Subordinate Judge has submitted his findings. He has held that no gift was made and further that, even if it be established that a gift was made, then it was not valid firstly because it has been made with a view to defeat, delay and defraud the donor's creditors and secondly because such a transfer could only be made under a registered instrument. The first point to be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in the other room. So very little importance can be attached to her statement when she says that the writing was signed by the witnesses. The learned Subordinate Judge omitted to take into consideration another statement made by the lady in her statement, where she stated in reference to the writing referred to above that she had filed the same in Court. This clearly shows that her statement, that a written document had been pre-pared, refer, to the letter which has been produced in Court. We further find that later on, at another place, in her statement, she was asked whether the witnesses signed the writing in her presence and she stated that she did not remember. On a reading of the entire evidence on the statement made by Mt. Kulsum Bibi, I have not the least doubt in my mind that an oral gift of the property in question was made to her and that there was no deed of gift which had been withheld by her. The evidence produced in the case further proves beyond all reasonable doubt that since the gift in her favour she has been in possession of the property in question and has been realizing its rents from various tenants. 4. The next question for consideration is whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able and is not valid. I proceed to consider this question. It is well settled that under the Mohammadan Law, a gift of Immovable properties can be made verbally without recourse to a written and registered document. In Kamar-un-nissa Bibi v. Hussaini Bibi (1881) 3 All 266 their Lordships of the Privy Council held that that an oral gift of this nature was valid. See on this point Tyabji's Mohammadan Law Edn. 2, p. 372; Ameer Ali's Mahommadan Law, Vol. 1, para. 125, Edn. 10; Mulla's Mahommadan Law, Edn. 10, p. 112, para. 125. 6. It is conceded that a gift made under the rule of Mohammadan Law, would not be affected by the provisions of the Transfer of Property Act. The contention however is that only those gifts which are voluntary and without consideration are excepted from the operation of the rules relating to gifts as defined by the provisions of Section 122, T.P. Act. It was contended that if a gift is made for consideration, then it amounts to a 'Hiba-bil-ewaz' which stands exactly on the same footing as a sale as defined by Section 54, T.P. Act. Learned Counsel for the respondents relied on several cases in support of his contention. One of them is Fida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a right of pre-emption. In the case before us no such question arises. All that we have to decide is whether an oral gift made by a husband to his wife in lieu of her dower is valid or not. 8. A gift with consideration or return is called a 'Hiba-bil-ewaz' in Mohammadan Law. This is technically speaking a gift and not a sale though its precise legal position must lie mid-way between gift properly so called and sale. A 'Hiba-bil-ewaz' is a gift pure and simple. The donor gives something to the donee without any consideration whatsoever. If the donor, however, impelled by generosity or fellow-feeling, makes a return or 'ewaz' as a consideration or 'badal' of the gift and that 'ewaz' however valueless it might be, is accepted by the donor, the transaction becomes a 'hiba-bil-ewaz' and it lies no longer in the power of the donor to revoke the gift. When however the gift is made for a stipulated consideration, it is a 'hiba-ba-shart-ul-ewaz.' Mulla, in his Mahomedan law, at p. 129 makes the following observations: The main distinction between hiba-bil-ewaz as defined by the older jurists and hiba-ba-shart-ul-iwaz is that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r which a husband is competent to make an oral gift of Immovable property in favour of his wife, in lieu of her dower and the rule has the sanction of the highest Judicial tribunal. If the contentions of the respondent were accepted, then a Mahomedan would not be able to make an oral gift in favour of his wife in lieu of her dower, which would be against the well-recognized and well settled rule of Mahomedan law. In my opinion, the above mentioned rule of Mahomedan law, still holds good in spite of the passing of the Transfer of Property Act of 1882. 10. It was argued before us that according, to the provision of Section 122, T.P. Act, 'gift' is transfer of property made voluntarily and without consideration, and therefore the words in Section 129 that nothing in this chapter shall be deemed to affect any rule of Mahomedan law, refer only to gifts made voluntarily and without consideration and do not govern hiba-bil-ewaz' which are gifts with consideration and are in the nature of sales. I find myself unable to agree with this proposition. Section 129, T.P. Act, does not say that gifts, as defined under Section 122, by Mahomedans will not be affected by Oh. (7) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be valid notwithstanding. In Nasib Ali v. Munshi Wajed Ali 1927 44 CLJ 490 Suhrawardy, J. made the following observations: The position under the Mahomedan law is this: that a gift in order to be valid must be made in accordance with the forms stated above; and even if it is evidenced by writing, unless all the essential forms are observed, it is not valid according to law. That being so, a deed of gift executed by a Mahomedan is not the instrument effecting, creating or making the gift but a mere piece of evidence. It may so happen after a lapse of time that the evidence of the observance of the above forms might not be forthcoming, so it is sometimes thought prudent to reduce the fact that a gift has been made into writing. Such writing is not a document of title but is a piece of evidence. The law with regard to the gift being complete by declaration and delivery of possession is so clear that in a case before their Lordships of the Judicial Committee, Kamar-un-nissa Bibi v. Hussaini Bibi (1881) 3 All 266, where a gift was said to have been made in lieu of dower, their Lordships held that the requisite forms having been observed it was not necessary to enquire whether there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore a registered instrument was necessary. Accordingly he holds that no evidence can be given in proof of the oral gift, having regard to the provisions of Section 92, Evidence Act. 14. The gift is mentioned in a document addressed to the cantonment authorities by Habib Baksh intimating that he had made gift of the property now in dispute to his wife Kulsum Bibi. The property consists of certain buildings within the cantonment limits, and a register is maintained by the cantonment authorities in which the names of owners are recorded. Whatever may be said as regards the intention of Habib Bakhsh in making the gift in view of his embarrassed financial position, it cannot be doubted that he made the gift relied on by the appellant. The learned Subordinate Judge has laid stress on the fact that Mt. Kulsum Bibi had stated in her evidence that a document evidencing the gift was executed. The learned Judge thinks that oral evidence relating to the gift is not, for that reason, admissible. Mt. Kulsum Bibi obviously refers to the letter sent to the cantonment authorities, and did not mean that a formal deed of gift had been executed. No doubt the evidence of witnesses examined by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion. Such a gift can be made orally and the law does not require that it should be reduced to writing. Similarly relinquishment of a claim to dower can be made orally and no writing is necessary. For these reasons I hold that the oral gift by Habib Baksh and relinquishment by Mt. Kulsum Bibi are not excluded by Section 92, Evidence Act. 16. The last question is whether the gift is invalid, having been made to defeat or delay the creditors of Habib Baksh. Mt. Kulsum Bibi was herself a creditor. It is fettled law that dower-debt ranks with other debts. It has been found that Mt. Kulsum Bibi's dower was prompt. There is no doubt that Habib Baksh's intention was to defeat his creditors other than his wife, but this amounts to no more than giving preference to one creditor over the others. Where the effect of a transfer is to defeat not all but some only of the creditors, Section 53, T.P. Act, has no application. This is borne out by Musahar Sahu v. Hakim Lal 1915 43 Cal 521 in which their Lordships observe: As a matter of law their Lordships take it to be clear that in a case in which no consideration of the law of bankruptcy applies, there is nothing to prevent a debto ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
