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TMI Blog1951 (12) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... or about the year 1941 for a consideration of ₹ 250. After the death of Khasim Peeran, a creditor of his filed a suit on the foot of a promissory note, Section C. No. 54 of 1941 on the file of the District Munsif's Court of Prodattur and obtained a decree thereon. In execution of the decree, 1/4 share in ABCDEFG was sought to be attached. Thereupon, the defendants intervened with a claim petition, Ex. P. 5. which was allowed with the consequence that what was sold was the site marked C D E F in the plan on which the suit house stood. This was purchased by the decree-holder himself. The defendants once again came forward with a claim petition for redelivery of the properties, as though they were once in possession and were dispossessed by the auction purchaser. Evidently, this was not resisted by the auction purchaser, with the result that the claim was allowed. Since the present plaintiff was not a party to that claim petition, another application, E. A. No. 617 of 1943, which has given rise to this second appeal, was filed by the defendants impleading the present plaintiff as a party, for removal of obstruction and for redelivery. This application though it purports to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is the foundation of several decisions not only of that Court, but also of other High Courts. There one Shikdar made an oral gift of a portion of his property in favour of his wife, both in satisfaction of her dower debt and a share she would have on his death. The validity of the gift fell to be considered in the suit. When the matter went up in appeal to the High Court, a Bench of that Court regarded the transaction as a 'hiba-bil-ewaz' of India, though strictly, it was not a 'hiba-bil-ewaz', and held that it was a sale governed by the provisions of Section 54 of the Transfer of Property Act, and not a piiro 'hiba' or gift. 9. This was followed in 'Satulal Bhattacharjee v. Asiraddi Sheikh', 38 Cal W N 743 and also in 'Sarifuddin Mahomed v. Mohiuddin Mahomed', 54 Cal 754. 10. The same view was' adopted by the Patna High Court also. In 'Mahomed Usman V. Amir Main', AIR1949Pat237 : 26 Pat 561 a Bench of that Court held that such a transaction was a sale, falling within the scope of Section 54 of the Transfer of Property Act. This principle is affirmed by the Lahore High Court in a number of cases, and it is sufficient to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o far as we are aware, against the legality of such a transfer. 13. A different note was struck in some of the decisions of the Allahabad High Court, though the statement of law contained in earlier rulings of that Court is in accordance with the principle stated above. In 'Fida Ali v. Muzaffar Ali', 5 All 65, Mohmood J. delivering the judgment on behalf of the Bench, held that a transfer of immovable property by a Muhammadan husband in favour of his wife in consideration of her dower debt was a sale giving rise to a right of pre-emption. The same view was shared by Sulaiman C.J. and Banerji J. in 'Saifur Bibi v. Abdul Aziz Khan' 1931 All L J 951. The learned Judges decided that transfer of property made in lieu of an existing debt in cash would be a transfer for price, so as to bring it within the meaning of Section 54 of the Transfer of Property Act. 14. But in 'Mt. Kulsum Bibi v. Shiam Sunder Lal', AIR1936All600 , a Bench of the same High Court differed from the earlier view and came to the conclusion that a transaction called hiba-bil-ewaz was not a sale but a gift. The grounds, upon which the learned Judges reached that decision, was that the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eer All in his book on Muhammadan Law (4th Edn.) vol. 1 page 162 states: And the rules stated above do not. therefore, apply to what in modern times is called a 'hiba-bil-ewaz'. which is a transaction of quite a different nature, and partakes to a certain extent of the second kind of 'ewaz' mentioned in the Fatawai Alamgiri, viz., where it is stipulated in the contract. In this kind of 'Hiba-bil-ewaz', the consideration is directly opposed to the object of the gift, both being 'in case'; there is no suggestion of one being subsequent to the contract. The grant and the consideration are parts of one transaction. A 'hiba-bil-ewaz', therefore, is a sale in all its legal incidents. In sale, mutual seisin is not requisite to render the contract' valid and the terms in which a contract of this kind is entered into imply that the articles opposed to each other are present and that there is no danger of either party suffering from the other's fraud. I have given you this for that implies that the consideration is present, and that the person will take care to receive it before parting with his property and the law, therefore, annexes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of pre-emption. The learned Judges held that a Muhammadan wife entitled to property under such a transaction was not entitled to the right of pre-emption as, in their opinion, the transaction was not a sale. This decision is based both on 'KAMARUNNISSA BIBI v. HUSSANI BIBI', 3 All 266 and on the dictum that the discharge of the dower debt is not a price within the meaning of Section 54 of the Transfer of Property Act. According to the learned Judges, the claim for a debt, being a chose in action no payment of money or promise to pay money is involved in the transaction. The learned Judges observe thus: A claim for a debt is a chose in action and has well-known legal incidents--See 'Ryall v. Rowles', and notes under it in White and Tudor's Leading cases, Vol. I p. 98, 8th Edn. Where does then payment of money or a promise to pay money come in this transaction? Nowhere. We do not think that we can agree with the learned Judges in their conclusion that the discharge of an existing debt, which is an ascertained sum does not amount to a price within the meaning of Section 54 of the Transfer of Property Act. Suffice it to say that in a number of cases, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, or is not, stipulated for at the time of the gift. In both kinds there are two distinct acts; first, the original gift, and second, the 'ewaz' or exchange. But in the hiba-bil-ewaz' of India, there is only one act; the 'ewaz' or exchange, being involved in the contract of gift as its direct consideration and all are agreed that if a person should say I have given this to thee for so much , it would be a sale; for the definition of sale is an exchange of property and the exchange may be effected by the word give as well as by the word sell . The transaction, which goes by the name of 'hiba-bil-ewaz' in India is, therefore, in reality not a proper 'hiba-bil-ewaz' of either kind, but a sale and has all the incidents of the latter contract. Accordingly, possession is not required to complete the transfer of it though absolutely necessary in gift and what is of great importance in India, an undivided share in property capable of division may be lawfully transferred by it, though that cannot be done or by either of the forms of the true 'hiba-bil-ewaz'. On these authorities both judicial and textual, we have come to the conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ma Ammal', 23 Mad 70, is relied on for substantiating the contention that 'hiba-bil-ewaz' is not a sale but a gift. We do not think there is any scope for this contention because nowhere in the decision is any such statement of law made. All that was decided there was that a gift for consideration could be valid even though it was not accompanied by delivery of possession of the property. They described such a transaction as a gift for consideration, which can only mean a sale. The passage in that judgment, which was called in aid by Mr. Kuppuswami is this: That in such a case transfer of seizin is unnecessary is clear from the Privy Council case of 'Ranee Khajooroonissa v. Mt. Rowshan Jehan', 2 Cal 184 cited for the respondent. The Muhammadan law rules relating to sales and exchanges, on which the appellant's vakil laid much stress have really no bearing in a case like this. We do not think this passage can give rise to the contention that 'hiba-bil-ewaz' is not a sale within the meaning of the Transfer of Property Act. There, it was decided that though the donee was not put in possession of the property, a valid title passed to the donee. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The transaction called the 'hiba bil ewaz' of India has been held to be a sale so that if the property is immovable property of the value of ₹ 100 or upwards, it must be effected by a registered instrument. At this place, the learned author does not express any opinion of his. 26. In this situation, we have to reject the contention put forward on behalf of the respondents. It follows that the view of the lower appellate Court that the transaction is valid, despite its not having been evidenced by a registered instrument cannot be sustained. Therefore the suit of the plaintiff, so far as it claims declaration of his title based on the oral sale in favour of the vendor by her husband is concerned, should fail. 27. But this does not dispose of this appeal. We have next to consider whether the order in E. A. No. 617 of 1943 is sustainable, or, has to be vacated. On the findings that the plaintiff and his vendor were in possession of the property throughout, i.e. ever since the transfer of the property to the plaintiff's vendor by Khasim Peeran and that the plaintiff and his vendor have remained in possession of the property, we do not think that the summ ..... 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