MUSAMMAT MUSTAFAI BIBI Vs. SHEIKH MUHAMMAD SHABBIR

JUDGEMENT

(1.) The facts of the suit out of which this appeal arises are these: On the 14th March 1896 Abdul Aziz transferred certain property to his wife in lieu of dower. This may be called property (a). His wife's name was Hajira. On the 29 June 1907 Hajira transferred this property (a) together with property (b) to Muhammad Fasih, the son of her deceased son Muhammad Wasi, and to Muhammad Shabbir, the son of her deceased sou Muhammad Shibli, Hajira died in 1909. Muhammad Fasih died in the same year. In 1919 Musammal Mustafai Bibi, the widow of Muhammad Wasi and the mother of Muhammad Fasih, and Karim-uu-uissa Bibi, the daughter of Muhammad Wasi, instituted a suit against Abdul Aziz and Muhammad Shabbir for possession of such portion of property (a) and (b) as they could have inherited either from Muhammad Wasi on the allegation of previous oral gift or from Muhammad Fasih on the allegation of the deed of gift of 1907.

(2.) The finding of fact of the lower Appellate Court is this: That property (a) was never transferred by Abdul Aziz to Hajira, and that the deed purporting to transfer it was collusive and fictitious ; that Abdul Aziz had made a colourable transfer in 1896 to his wife in lieu of dower-debt due but that this transfer had never been carried into effect and had been made to defraud creditors. It would, however, appear that no creditor had actually been defrauded. The lower Appellate Court further found in respect of property (b) that Musammat Hajira had no title to property (b) and had nothing to transfer. Therefore, finding that there had been no valid transfers either to Muhammad Wasi or to Muhammad Fasih it dismissed the plaintiff's suit concurring in the finding of the Trial Court which was to the same effect.

(3.) The plaintiffs appeal here. Their learned Counsel argues in the main that it is not open to the defendants to plead that the deed of 1896 was fraudulent or collusive, as this would be tantamount to permitting Abdul Aziz to plead his own fraud in his own favour. It is, however, to be noted that Abdul Aziz died during the pendency of these proceedings. His sole heirs on the plaintiffs own showing are his daughter Majidan and Muhammad Shabbir, whose names have been substituted for his. During the pendency of the proceedings Abdul Aziz transferred all his interests to Muhammad Shabbir but I am not concerned with the effect of that transfer. What I have to note are two points. The first point is that on the findings of fact the transfer of 1896 was certainly fraudulent and collusive and intended to deceive creditors but that on the facts it did not result in defrauding any body. The law, as laid down in Govinda Kuar V/s. Lola Kishun Prosad 28 C. 370 and Honapa v. Narsapa 23 B. 406 : 12 Ind. Dec. (N.S.) 270, decides that it is only where the attempted fraud has been wholly or partially carried into effect that the Court will give effect to the fraudulent transaction as between the transferor and transferee. Here, the fraud was not carried into effect. Here further, the circumstances are peculiar. The fraudulent transfer was made by Abdul Aziz in favour of his wife. His wife having 110 authority so to transferred first to her sons Wasi and Shibli according to the plaintiffs, and subsequently to her grandsons, Fasih and Shabbir, and this transfer was to the prejudice of her daughter Majidan. So if I gave effect to the plea put forward by the learned Counsel for the appellants I should not be punisrfing Abdul Aziz, the person guilty of the fraud, but punishing his innocent daughter, who, owing to his fraud in the first instance and owing to her mother's unauthorised transfers in the second instance?, would be effectually deprived of her property. It has never been laid down in any Court that a fraud can be pleaded successfully against an innocent person. For these reasons the plea is untenable. That is really the sole point in the appeal. The remaining decisions are decisions of fact. There is no question of the interpretation of the legal effect of documents. Here we are only concerned with the construction of the documents in so far as the question of the identity of the property transferred is to be considered. There is no doubt that the document of 1896 is a transfer of property in lieu of an alleged dower-debt and that the document of 1907 is a deed of gift. On the facts, Musammat Hajira was transferring property which it is not proved she was entitled to transfer. There is no question of estoppel, and that concludes the matter. I dismiss this appeal with costs which include fees on the higher scale.