MT KULSUM BIBI Vs. BASHIR AHMAD

JUDGEMENT

(1.) The facts of this case are on all fours with those of Kulsum Bibi V/s. Shiam Sunder Lal reported in , which has been already disposed of by this Bench. It appears that, the property in dispute was attached by a creditor, named Mussaddi Lal, respondent in that appeal, and also by Bashir, respondent of the present appeal. The appellant, Mt. Kulsum Bibi, the widow of the-judgment-debtor Habib Baksh, objected; on the ground that the property had been, given to her by her husband in lieu of her dower amounting to Rs. 21,000 and that it did not form part of the assets of the deceased. The decree-holders in two separate cases pleaded that Habib Baksh. had not, in fact, made any gift in favour of his wife and that, in any case, the gift, being in fraud of his creditors was void. The objections were dismissed. Mt. Kulsum Bibi came to this Court in appeal, and the case was remanded with a direction that the following two issues be determined and the cases disposed of in accordance with the findings thereon : (1) Did Habib Baksh make an oral gift in respect, of the houses in question in favour of Mt. Kulsum Bibi in lieu of her dower, as alleged by her, and whether the same was valid? (2) If the first issue is found in the affirmative, then was the gift made with a. view to defraud his creditors?

(2.) The trial Court held that no gift was, in fact, made by Habib. Baksh and that, on the own showing of Mt. Kulsum Bibi: the gift had been reduced into writing. Consequently, oral evidence in proof thereof was inadmissible. On the second issue it was found that the gift was fraudulent toeing intended to defeat the claim of the creditors. On these findings the objections of Kulsum Bibi were dismissed. She again appealed to this Court. Ex. E. A. No. 317 of 1931, Mt. Kulsum Bibi v. Mut-saddi Lal has already been disposed of by us. We held in that case that Habib Baksh had made an oral gift in consideration of his wife relinquishing her claim to dower amounting to Rs. 21,000 and that there was no gift in writing, as held by the Subordinate Judge. As a matter of fact, Habib Baksh had recited the factum of gift in an application made to the Cantonment authorities immediately after the gift, asking them to give effect to the delivery of possession under the gift by mutation of names in favour of the donee. Reference in the evidence of Mt. Kulsum to a writing related to this application and not to a written instrument evidencing gift. Our finding on this part of the case is fully stated in our judgment in Kulsum Bibi V/s. Shiam Sunder Lal reported in . By agreement of the parties in the lower Courts, evidence in one case was treated as evidence in the cither. Having heard counsel for the respondents in this case, we see no reason to take a different view from what we did in the earlier case.

(3.) Accordingly we hold, for the reasons given in the other case, that Habib Baksh made an oral gift of the property in dispute in this case to his wife, Kulsum Bibi, who, in her turn, relinquished her claim to prompt dower amounting to Rs. 21,000. There was some controversy as regards the amount of dower due to her. The trial Court found that it was Rs. 21,000, and we upheld that finding. We take the same view in the present case on that question also. On the second issue we held in the other case that it was a case of debtor giving preference to one pf his creditors, and though the transaction had the effect of wholly or partly defeating the claims of other creditors, the gift could not be set aside as fraudulent. For the reasons on which our view proceeds on this point our judgment in Kulsum Bibi V/s. Shiam Sunder Lal reported in should be read. It is not necessary to recapitulate all that we said in disposing of that appeal. We have, however, considered the arguments put forward on behalf of the respondent Bashir Ahmad, and are of opinion that the view taken by us in the earlier case is not shaken by the authorities which have been referred to in the course of arguments in this case. The learned Counsel contended that the hiba-bil-iwaz pleaded in this case is in reality a sale and therefore a registered instrument was essential. Reliance is placed on Baillie's Muhammadan Law, Vol. I, p. 122 in which the following passage occurs: Hiba-bil-iwaz means, literally gift for an exchange; and it is of two kinds, according as the iwaz, or exchange, is, or is not, stipulated for at the time of the gift. In both kinds there are two distinct acts: first, the original gift, and second the iwaz or exchange. But in the Hiba-bil-iwaz of India, there is only one act, the iwaz, or exchange, being involved in the contract of gift as its direct consideration. And all are agreed that if a person should say, I have given this to thee for so much it would be a sale, for the definition of sale is an exchange of property for property, and the exchange may be effected by the word give as well as by the word sell. The transaction which goes by the name of hiba-bil-iwaz in India is, therefore, in reality not a proper hiba-bil-iwaz of either kind but a sale; and has all the incidents of the latter contract. Accordingly, possession is not required to complete the transfer of it, though absolutely necessary in gift, and what is of great importance in India, an undivided share in property capable of division may be lawfully transferred by it, though that cannot be done by either of the forms of the true hiba-bil-iwaz.