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TMI Blog1946 (2) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 1 sold the land to defendant 2 for us. 1600 on 4-4.1938, and hence the plaintiff had to file this suit. Defendant 1 did not contest the suit, but defendant 2 did not admit the alleged gift to the plaintiff and claimed that he was its full owner under the sale deed passed to him by defendant 1. In proof of the gift, the plaintiff relied upon the entry made in the Kazi's book at Bombay at the time of her marriage with defendant 1. That entry says: Certified... that marriage was celebrated by the gift of a piece of land at Deolali, Ahmednagar District, in lieu of mahr of ₹ 2500. 2. The learned trial Judge raised various issues at Ex. 51, the first issue being: Whether the plaintiff proves that suit Survey No. 347 was given to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mohiuddin Rule 1927 Cal. 808 and Fateh Ali v. Mahomed Bakhah A.I.R. 1928 Lah. 516 on which the Courts below have relied, the High Courts of Calcutta and Lahore have held that a transaction of this character is nothing but a sale, so that where the property gifted is immovable property of the value of ₹ 100 or more, the gift must be effected by a registered instrument as required by Section 54, T.P. Act. In Gopal Das v. Mt. Sakina Bibi 23 A.I.R. 1936 Lah. 307 it was taken for granted, nor was it disputed, that a gift by the husband, of landed property in lieu of dower in favour of his wife, was tantamount to a sale, and the only question debated was whether the necessity for the registration of the deed of gift depended on the amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce it is not necessary to do so in this case. 6. In all the cases cited above, iwaz (a consideration in exchange) for the hiba was a dower-debt. In the. present case the dower had not yet become a debt when the gift of the land was made by defendant 1 to the plaintiff. The entry in the Kazi's register shows that the marriage was celebrated by the gift of the land "in lieu of mahr of ₹ 2500." That means that defendant 1 intended to give a mahr of ₹ 2500 to the plaintiff, but instead he made a gift of a. land to her as mahr. It cannot be said that she made a gift of ₹ 2500 to him as iwaz (an exchange) for the gift of the land. Mahr may be a sum of money or other property, and if property is given as mahr, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount. It only means that the bride was to receive mahr amounting to ₹ 2500, either in cash or in land, and it would have become a debt after the marriage. But defendant 1 chose to give the mahr in kind by making a gift of immovable property of that value. In my opinion, when at the time of the marriage a land is assigned by the bridegroom to the bride in lieu of mahr, the assignment is a simple gift (hiba), and neither a sale nor a hiba-bil-iwaz. No writing is necessary for the validity of such a gift, since Section 129, T.P. Act, exempts a gift by a Mahomedan from the provisions of that Act, but such a gift is subject to the doctrine of Mushaa, and the gift would not be complete and valid without delivery of such possession as the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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