9911796707
TMI Blog1985 (4) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the I.T. Act, whether the income from the said property should be included in the income of Babu Khan. The assessee's contention was that, inasmuch as the said property was transferred to his wife as far back as 1928 in lieu of " deferred dower ", i.e., for adequate consideration, the income therefrom cannot be included in his income under s. 64 of the Act. This was rejected by the ITO, but accepted by the AAC in appeal. However, when the matter came to the Tribunal, the Tribunal rejected the assessee's contention, following the decision of this court in CWT v. Khan Saheb Dost Mohd. Alladin [1973] 91 ITR 179. The assessee then obtained this reference under s. 256(2) of the Act. Since there was no specific finding that the said property was transferred to the assessee's wife in 1928, either in the order of the ITO or the AAC or the Tribunal, a Bench of this court called upon the Tribunal to submit a supplemental statement on the following aspect: "Whether the property in question, i.e., the eighth item, was transferred by Sri A. K. Babu Khan to his wife in lieu of deferred dower, and if so, what are the circumstances in which the said transfer was made ? " On a considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... band as a mark of respect to the wife. Mahmood J., in Abdul Kadir v. Salima [1886] ILR 8 All 1.49, said that it had been compared to the price in a contract of sale because marriage is a civil contract and sale is a typical contract to which Mahomedan jurists are accustomed to refer by way of analogy. If dower were the bride price, a post-nuptial agreement to pay dower would be void for want of consideration, but such an agreement is valid and enforceable........ ( para 285, at page 308). " The amount of dower is usually split into two parts, one called ' prompt' which is payable on demand, and the other called 'deferred', which is payable on dissolution of marriage by death or divorce ...... .. (para 290, at page 311). " The dower ranks as a debt, and the widow is entitled, along with other creditors of her deceased husband to have it satisfied on his death out of his estate. Her right, however, is no greater than that of any other unsecured creditor, except that she has a right of retention to the extent mentioned in s. 296 below. She is not entitled to any charge on her husband's property, though such a charge may be created by agreement ...... (para 295, at page 315). To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the object of compelling the husband to fulfil the terms of the marriage contract in their entirety ...... .." At page 483, it is stated : " It is also lawful to stipulate that the husband should pay as much as he can at once, and the remainder at some fixed time later. " It is thus clear that dower is treated as a sum agreed in consideration of the marriage. In Muslim law, marriage is a civil contract; dower is matter of agreement between the parties; it can be agreed upon at the time of marriage; it can also be agreed upon after the marriage; it can be enhanced after the marriage by mutual consent, or relinquished, as the case may be, by the wife. It is open to the parties to agree that the dower fixed shall be partly prompt, and partly deferred; they can agree upon the quantum which is to be treated as prompt, and that which is to be treated as " deferred ". It is open to the parties to agree that the whole of the dower shall be prompt; it is also open to them to agree that only a certain small amount shall be prompt and the major portion shall be " deferred ". In short, it is a matter of mutual agreement the law only says that there shall be dower, leaving the rest to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ill the nature of a debtor, and the wife is in the nature of creditor. The deferred dower is payable, ordinarily, on the dissolution of marriage by death or divorce; but, there is nothing in Muslim law to prevent a husband from choosing to pay the said debt before the happening of the stipulated event, and the wife from accepting it, though it may be that the wife may not be entitled to claim or enforce such claim before the happening of the stipulated event. This view is supported by the following decisions : In Suba Bibi v. Balgobind Das [1886] ILR 8 All 178, it was held that deferred dower debt can be treated as " prompt " by the husband. Again, in Seth Nemichand v. Mt. Maluk Begum [1910] 5 IC 316, a Bench of the Allahabad High Court held that a deferred dower can form a valid consideration for the transfer of property during the lifetime of the husband who has not divorced his wife. It was held that while a wife is not entitled as of right to demand the payment of her deferred dower, the husband is entitled, if he go pleases, to pay his wife her dower before it is due, or to discharge or satisfy his obligation in any other legal way. To the same effect is another decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py blackacre. But an interest may be vested, even where it does not carry a right to immediate possession, if it does confer a fixed right of taking possession in the future. Since all the investitive facts which are necessary to create the right have occurred, the right is vested in interest, even though actual enjoyment be postponed to a definite time in the future. If a grant is made to B in fee simple, he takes a vested right in possession. " Now we shall refer to the decisions relied upon for the Revenue which, according to the learned counsel for the Department, take a contrary view. Reliance is first placed upon the decision in Mirza Ali v. Mt. Qadari Khanam, AIR 1919 Lahore 139; 50 IC 774. In that case, a learned single judge held that, in view of the proviso to s. 24 of the Provincial Insolvency Act, 1907, the amount of deferred dower cannot be entered in the schedule of debts of the insolvent (husband). It is relevant to notice the facts of the case. The insolvent (husband) entered only the amount of prompt dower in the list of debts submitted by him. His wife, however, got the full amount of both prompt, and deferred dower, entered in the schedule, on the reasoning tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in para. 46 of Wilson's Mahommedan Law (edition IV), is payable only on the termination of the marriage by death or divorce. Neither of these contingencies has yet taken place, and it is not possible to say whether the husband will or will not divorce his wife, or whether he will or will not predecease his wife; nor is it possible to say at what date the husband would predecease or divorce his wife, if either of the two contingencies did take place. Accordingly, it is not possible for the insolvency court to estimate what would be the present value of the deferred dower debt of Rs. 5,000 which was to be paid if either of those contingencies took place. Section 33, sub-section (1), Provincial Insolvency Act, states : ' Provided that if, in the opinion of the court, the value of any debt is incapable of being fairly estimated, the court may make an order to that effect, and thereupon the debt shall not be included in the schedule.' We consider that the present deferred dower debt comes within that proviso. It is not possible for the insolvency court to arrive at any fair estimate of the value of this deferred dower debt in comparison with the debts of the other creditors who are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not. The Revenue's contention was that, inasmuch as, according to Muslim law, deferred dower is payable only on the happening of the stipulated event, viz., dissolution of marriage by death or divorce, it is not a debt in praesenti and hence the transfer effected in lieu of such a debt cannot be called an adequate consideration. For examining this contention, the Bench referred to the concept of dower in Muslim law (at pages 187 and 188) which is substantially the same as set out in the texts referred to by us hereinbefore. After setting out the law on the subject, the Bench proceeded to observe thus (p. 188): " Deferred dower cannot be converted into prompt dower by making the wife demanding the same as it is not a debt in praesenti. Deferred dower is payable on the dissolution of marriage or the happening of some event specified in the 'sianama', or a s agreed upon by the parties. Normally, the Muslims in India treat deferred dower as a penal sum permitted to remain unpaid with the object of compelling the husband to live together and fulfil the terms of the marriage contract in their entirety ; (See Mohammadan Law by Ameer Ali, 3rd edition, volume-II, page 482). In the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apart, the deferred dower would not become a debt owed by the assessee during the subsistence of the marriage...... The assessees either of their volition or with the consent of their wives are not entitled to make such provision in the deeds executed by them. Such provision will be illegal and not binding on the parties, and much less on the Revenue..." With great respect to the learned judges who decided the case, we are unable to agree with the said view. Even according to the concept of dower in Muslim law, as set out by the Bench, it is primarily and wholly a matter of agreement between the parties. Once it is a matter of agreement, it must follow that the stipulations once agreed upon can always be varied by mutual agreement, unless there is some textual prohibition in Muslim law. No such prohibition is found in any of the text-books, nor is any such referred to in the said decision. The Bench seems to have laid great stress upon the statement in Ameer Ali's Mahommedan Law that, normally, the Muslims in India treat the deferred dower as a penal sum which is allowed to remain unpaid with the object of compelling the husband to fulfil the terms of the marriage contract in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not contingent debt is also the view of Vivian Bose J. in Bibi Janbi v. Abbas Ali, AIR 1941 Nag 167. The statement of law from G. W. Paton's Jurisprudence also goes to show that such a debt cannot be called a contingent debt. In such a situation, we are unable to agree that it is not open to Muslim husband to choose to pay the deferred dower at any point of time earlier than the happening of the stipulated event. It is, no doubt, not debt in praesenti, ordinarily speaking ; but, if the husband chooses to pay it at once, and pays it, it becomes a debt in praesenti. Mr. M. S. N. Murthy, the learned standing counsel for the Revenue, contended that, if we take such a view, it would open up a new avenue of mischief. He contended that it would now be open to a Muslim husband to transfer all his properties to his wife in lieu of her deferred dower, and thereby defeat the other creditors. We are unable to appreciate the said contention. Deferred dower is an unsecured debt. The secured creditors will not be prejudicially affected by any transfer effected by the husband in favour of his wife, in lieu of deferred dower. So far as the unsecured creditors are concerned, it is always open to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
