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TMI Blog1927 (3) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Talib Ali is a co-sharer in the tenure in which the share conveyed by the deed of the 25th of March 1924 is situate. He claims to exercise the right of pre-emption in respect of the transfer of the 25th of March 1924. 2. There were several defences to this suit, but for the purposes of this appeal only one need be mentioned. This defence arises out of the allegations made in paragraphs 8 and 9, of the written statement of the two defendants. The allegations do not bring out the point for decision in full relief, but this led to no difficulty. The substance of the, plea in defence is that the real nature of the transfer evidenced by the deed of the 25th March 1924 is a gift of the four annas share by the husband in favour of his wife in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect, and that if it has any legal effect whatever, it is of the nature of a transaction inter vivos--Tirugnanapal v. Ponnammai A.I.R.1921 P.C.89. 6. The question is, therefore, one of pure' construction. 7. The consideration for transfer of the four annas share is stated to be a sum of ₹ 50,000 and this sum is further stated to be a portion of the total amount of the dower debt of seven lakhs due from the transferrer to the transferee. The deed further declares that to the extent of ₹ 50,000, forming the consideration of the transfer the dower debt of seven lakhs is reduced. The position, therefore, is this that on the date of the transfer Kaniz Fatima Began had a subsisting claim or a legal right to her dower debt to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the transaction is, therefore, a gift for consideration. This form of gift is well understood in Mabomadan Law as hiba-bil-ewaz and has repeatedly been recognized as such by their Lordships of the Judicial Committee: Ranee Khujoorooriissa v. Mt. Roushun Jehan [1876] 2 Cal.184, and Chaudhri Mehdi Hasan v. Muhammad Hasan [1906] 28 All.439. 10. The question as to whether a gift of immovable property in consideration of a part or whole of dower debt is subject to a claim for preemption was discussed and decided in the negative by a Bench of this Court, to which one of us was a party, in the case of Bashir Ahamad v. Mt. Zuhaida Khatun A.I.R.1926 Oudh186. It will serve no useful purpose to repeat here the grounds of the decision in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his wife in lieu of ₹ 50,000, a portion of her dower debt, and consequently the claim for pre-emption is not maintainable in respect of the transfer. The trial Court has given effect to this plea in defence, as also to some other pleas, and dismissed the suit. 3. At the hearing of the appeal the learned Counsel for the appellant frankly stated that in the event of our upholding the decision of the trial Court in the question just now mentioned; he did not desire to challenge the findings of that Court on other issues. No arguments were, therefore, heard on those issues. 4. The deed of the 25th of March 1924 is christened as a sale deed and the words of transfer used are: The declarant has made absolute sale of that very four an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer debt to the extent of seven lakhs against her husband and the husband was under a corresponding legal obligation to satisfy it. The effect of the transfer was the satisfaction of the wife's claim for dower debt to the extent of ₹ 50,000 and a corresponding release of the husband from the obligation to pay. This being the true nature of the transaction it is not a sale. 8. Sale is defined in Section 54 of the Transfer of Property Act as a transfer of ownership in exchange for a price paid or promised or part paid and part promised obviously "price" in this definition means money only for if the thing given in exchange consists of any thing other than money the transaction is not one of sale, but of am exchange. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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