MT KULSUM BIBI Vs. SHIAM SUNDER LAL

JUDGEMENT

(1.) This is a First Appeal arising out of an order passed in execution proceedings. The facts of the case can briefly be stated as follows: On 26 August 1925, the decree-holder obtained a decree for Rs. 22,518, against one Habib Baksh and others. After the death of Habib Baksh the names of his widow Mt. Kulsum Bibi and some other persons were brought on record as his legal representatives. In execution of the aforesaid decree, some house property situate in Jhansi was attached. Mt. Kulsum Bibi, the widow of Habib Baksh, filed objections against the attachment. She alleged that on the fir February, 1930 her husband Habib had made an oral gift under which the property in question was gifted to her in lieu of her dower, which amounted to a sum of Rs. 21,000, and that therefore the same was not liable to attachment. The decree-holder denied the allegations of Mt. Kulsum Bibi. The learned Subordinate Judge dismissed the objections of Mt. Kulsum Bibi on 28 February 1931. Against that order, Mt. Kulsum Bibi preferred an appeal which came up for hearing before a Bench consisting of my learned brother Niamatullah, J. and myself. We came to the conclusion that there had been no proper enquiry into the matter in controversy between the parties and we therefore remanded the case to the Court below to hear the parties again and then give findings on the following issues: Issue 1. Did Habib Baksh make an oral gift in respect of the house in question in favour of Mt. Kulsum Bibi, in lieu of her dower, as alleged by her and whether the same was valid and provable? Issue 2. If the first issue is found in-affirmative, then was the gift made with a view to defraud his creditors?

(2.) The learned Subordinate Judge has submitted his findings. He has held that no gift was made and further that, even if it be established that a gift was made, then it was not valid firstly because it has been made with a view to defeat, delay and defraud the donor's creditors and secondly because such a transfer could only be made under a registered instrument. The first point to be considered in this case is as to what was the amount of the dower due to Mt. Kulsum Bibi. The objector Mt. Kulsum Bibi had pleaded that her dower was Rs. 21,000 while the decree-holder's case was that it was Rs. 1,100. The learned Subordinate Judge recorded a finding in favour of Mt. Kulsum Bibi and held that her dower was Rs. 21,000 and that it had not been paid. This finding has not been challenged before us and I have no hesitation in accepting it as correct. The next question for consideration is whether Habib Baksh, made an oral gift of the property in question to Mt. Kulsum Bibi, in lieu of her dower. The learned Subordinate Judge held that this point was not established. In my opinion, the view taken by the learned Subordinate Judge appears to be entirely wrong and therefore cannot be sustained. A number of witnesses were examined who deposed that Habib Baksh had made an oral gift of the property in question, in favour of Mt. Kulsum Bibi. It further appears that a letter was sent by Habib Baksh to the Cantonment Authorities, intimating to them that he had made a gift of the property in question to his wife, Mt. Kulsum Bibi. It appears that in the course of her statement before the learned Subordinate Judge, Mt. Kulsum Bibi stated that the transaction was in writing and she further stated that the said writing was with her and that it had been signed by the witnesses. The learned Subordinate Judge has drawn an inference from this statement that there was a written gift which had been executed by Habib Baksh, which has been withheld and therefore oral evidence to prove its contents was not admissible, under Section 92, Evidence Act.

(3.) I find myself unable to agree with this view of the learned Subordinate Judge that Mt. Kulsum Bibi is keeping with her any written gift or that any written gift was executed by Habib Baksh. In a case of this description, when we have to consider the credibility or otherwise of the statement of a pardanashin lady, it is altogether unsafe to place reliance on an isolated passage of this description. Her whole statement has to be read, and if we do so there can be no doubt that what the lady said was that a gift of the property in suit had been made to her and that some kind of writing was also drawn up. From her statement it appears that she was sitting in one room while her husband and the witnesses were sitting in the other room. So very little importance can be attached to her statement when she says that the writing was signed by the witnesses. The learned Subordinate Judge omitted to take into consideration another statement made by the lady in her statement, where she stated in reference to the writing referred to above that she had filed the same in Court. This clearly shows that her statement, that a written document had been pre-pared, refer, to the letter which has been produced in Court. We further find that later on, at another place, in her statement, she was asked whether the witnesses signed the writing in her presence and she stated that she did not remember. On a reading of the entire evidence on the statement made by Mt. Kulsum Bibi, I have not the least doubt in my mind that an oral gift of the property in question was made to her and that there was no deed of gift which had been withheld by her. The evidence produced in the case further proves beyond all reasonable doubt that since the gift in her favour she has been in possession of the property in question and has been realizing its rents from various tenants.