SHAIKH MOHAMMAD ZOBAIR Vs. MTBIBI SAHIDAN

JUDGEMENT

(1.) The question that arises in this second appeal is whether Mt. Ghafira, who was defendant 3 in the Court below, is entitled to retain possession of some 7 bighas, 19 kathas of land, which admittedly belonged to her grandfather, Mohammad Ali, as against the plaintiffs who have taken a conveyance of that and other land from certain of Mohammad Ali's heirs. Mohammad Ali died in or about 1928. A year or so prior to his death, it is said that he made a gift of this land to his wife, Mt, Sahidan defendant 1, who, in return, relinquished all claims to her dower debt which amounted to Rs. 6000. In 1931, Mt. Sahidan executed a registered deed of gift conveying the land in suit and certain other land to her two daughters, Mt. Zobaida, defendant 2 and Mt. Taslima, who is now dead and who was the mother of Mt. Ghafira, defendant 3. Mt. Taslima had, it is said, during her lifetime, made a gift of her interest in the land in suit to her daughter, Mt. Ghaflra. This gift, unlike the earlier one, was an oral gift. When Mohammad Ali died, his sister, Mt. Hanifa, was alive as also were her son, Abdul Halim, and her daughter, Mt. Khairatan. The interest, which these persons inherited in the property of Mohammad Ali was 5/24ths of the whole, and in 1933, they conveyed this to the plaintiff.

(2.) The Courts below, which have dismissed the suit, were satisfied that Mohammad Ali did in fact convey this land to Mt. Sahidan and that Mt. Sahidan, in return, relinquished her claim for dower. They were, however, of opinion that this transaction was a sale and not a gift, and that, as no document was executed and. registered, it was invalid and did not pass the property to Mt. Sahidan. For the same reason, however, the dower debt of Mt. Sahidan was, in their opinion, still unpaid and she had, in consequence, a right to retain possession of the land in suit by way of security for its payment. Belying on certain decisions of this Court, that the right of a Mahomedan widow to retain possession of her husband's property until her dower debt is paid is a transferable right, they concluded that the plaintiffs were no more entitled than the heirs of Mohammad Ali would have been to claim possession of the property as against Mt. Ghafira.

(3.) Mr. S.K. Mitra for the respondents has contended that the finding of |he Courts below, that the transaction between Mohammad Ali on the one hand and Mt. Sahidan on the other was a sale, is erroneous. It was, Mr. Mitra suggests, a hiba-bil-ewaz, and, as such, no document was required in order to give it validity. Mr. Syed Ameer Ali, in Hitendra Singh V/s. Maharaja of Darbhanga A.I.R. 1928 P.C. 112 at p. 508 has observed: "Under the Mahomedan law a transfer by way of a hiba-bil-ewaz is treated as a sale and not as a gift." There are also numerous instances in which the High Courts in India have come to the conclusion that a transaction of this kind, by which a Mahomedan conveys certain property to his wife, and she in return relinquishes her dower debt, is a transaction in the nature of a sale and not a transaction in the nature of a gift: A decision of this High Court is Fazlur Rahman V/s. Mohammad Umar A.I.R. 1917 Pat. 18, a decision of the Lahore High Court is Mohammad Hassain V/s. Safdar Mirza A.I.R. 1933 Lah. 601, decisions of the Calcutta High Court are Abbas Ali V/s. Karim Baksh 13 C.W.N. 160 and Saburannessa V/s. Sabdu Sheikh A.I.R. 1934 Cal. 693. In attempting to support his argument, Mr. S.K. Mitra relied on the decision of the Chief Court of Oudh in Bashir Ahmad V/s. Zobaida Khatun A.I.R. 1926 Oudh 186, and on two decisions of the High Court of Allahabad Kulsum Bibi V/s. Shiam Sundar Lal ( 36) 23 A.I.R. 1936 All. 600 and Kulsum Bibi V/s. Bashir Ahmad A.I.R. 1937 All. 25. The two latter decisions, it may be observed, are decisions of the same Divisional Bench, and the transaction which was examined in both of them was the same. In the Oudh case the question that arose was whether a certain person had a right of pre-emption in respect of a property which had been conveyed by a Mahomedan to his wife by a deed of hiba-bil-ewaz. It was apparently contended that the transaction was in substance a sale and that a right of pre-emption, therefore, arose under Section 9, Oudh Laws Act, 1876. The words in the section on which reliance was apparently placed were "the property to be sold or foreclosed." Wazir Hasan and Raza, JJ., decided that no right of preemption was established. The ground, however, on which they came to this conclusion was that it was "wholly unsafe to deduce a rule of law that a claim for pre-emption can lie in respect of a transaction of hiba-bil- ewaz if in effect it amounts to a sale, when no such rule was promulgated by the Mahomedan jurists."