MT SAIFUL BIBI Vs. ABDUL AZIZ KHAN

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for pre-emption. The vendor was the husband and transferred the property in question to his wife, the vendee, under a document dated 16 July 1927 which was styled as a sale deed. The document recited that the amount of her dower debt was Rs. 5,000 and no part of it had been paid, and that the transfer was made in lieu of Rs. 2,500 out of that amount. One of the pleas in defence was that the suit for pre-emption did not lie because the transaction was a hiba bil ewaz and not a sale at all. THIS contention was accepted by the first Court and the suit was dismissed. On appeal the learned Subordinate Judge has held that the transaction was one of sale and was pre- emptible. The learned advocate for the defendant has drawn our attention to two cases of the Oudh Chief Court where it seems to have been held that a transfer of property by a husband to his wife in satisfaction of her dower debt was hiba-bil- ewaz and not at all a sale and was not therefore pre-emptible under the Oudh Laws Act : Bishir Ahmad V/s. Zobaida Khatun A.I.R. 1926 Oudh. 186. THIS was followed in Talib Ali V/s. Kaniz Fatima A.I.R. 1927 Oudh. 204. In the earlier case (at p. 268 of 92 I.C.) the learned Judges seem inclined to think that a transaction can be a sale within the meaning of Section 54 only when it was in lieu of money, and that a claim for debt was a chose in action" and a transfer in lieu of an existing debt would not be a sale. With great respect, we are unable to agree with this observation. A transfer of property in lieu of an existing debt in cash would be a transfer for a price paid so as to bring it within Section 54, T.P. Act.

(2.) THIS view has been consistently held in this Court in the cases of Ghulam Mustafa V/s. Hurmat [1880] 2 All. 854. Fida Ali V/s. Muzaffar Ali [1883] 5 All. 65 and Nathu V/s. Shadi [1915] 37 All. 522. The sime view has prevailed in the Calcutta and the Madras High Courts, Abbas Ali V/s. Karim Bakhsh [1909] 4 I.C. 466, Bibi Janbi v. Hazrath Sahib [1911] 12 I.C. 457 and Esahaq Chowdhry V/s. Abedunnissa Bibi [1915] 42 Cal. 361. If a question were to arise under the Mahomedan law we would have to look to what is meant by a hiba-bil-ewaz under that law. The question in this case however is under the Agra Pre-emption Act. Section 4(10) provides that a sale is the Pre-emption Act means a sale as define in the Transfer of Property Act. In this way the Agra Pre-emption Act incorporates the definition of "sale" as given in Section 54 of the latter Act, but the other provisions of that Act are not incorporated. All that we have to see here is whether the transfer of immovable property made in consideration of a part of an existing dower debt is a sale within the meaning of that definition. It has been held that a dower debt is a debt like every other debt, and therefore a transfer in lieu of it must be a sale as defined in that section. We accordingly hold that the view taken by the learned Judge was perfectly correct. The learned Subordinate Judge instead of fixing a definite date for payment as is contemplated by Order 20, Rule 14, Civil P.C. allowed time to the plaintiff to pay the pre-emption money within two months of the date of his decree becoming final. We fix two months from this date as the date for payment. If the amount is deposited within the time fixed the plaintiff will have his costs in the lower appellate Court and in this Court, and the parties will bear their own costs in the first Court. If the amount is not deposited within the time allowed the suit shall stand dismissed with costs in all Courts.