HAMID-UN-NISSA BIBI Vs. NAZIR-UN-NISSA

JUDGEMENT

(1.) This appeal arises out of a suit brought by the first wife of the defendant Ali Jawad for a declaration that a transfer made by him on the 6 of December, 1904 substantially of all his property in favour of his second wife was void against her. It appears that the appellant, Hamid-un-nissa Bibi, demanded her dower from her husband and instituted a suit for the recovery of it on the let of December 1904. Five days after the institution of this suit Ali Jawad made the transfer which is impeached in this suit. On the 22 February, 1905 the plaintiff appellant obtained a decree for her dower amounting to Rs. 5,000, and forthwith proceeded to execute her decree. She was resisted by the defendant respondent, Musammat Nazir-nn-mesa, and in consequence the suit out of which this appeal has arisen was instituted.

(2.) The court of first instance dismissed the plaintiff's claim. Upon appeal the learned District Judge affirmed the decision of the court below.

(3.) The man ground of that appeal was that the dead of transfer in question was a collusive and fictitious document, and that the dower of the defendant was only 500 dirhams and not, as she alleged, Rs. 20,000. As regard the amount of the dower both courts find that the dower of the defendant, Nazir-un-nissa was Rs. 20,000, but the learned District Judge finds that the impeached deed of transfer was undoubtedly a device on the part of Ali Jawad to deprive his first wife of the fruits of her victory in her suit for dower. He refers to a number of authorities and observes: "Taking the trend of all these rulings I am of opinion that the deed of gift cannot be looked upon a fraudulent transaction." He then says--"At the time of the gift the dower of the second wife was still due to her and constituted a valid debt in payment of which he could under the law make a valid gift of all his property to her," and then he observes: "I must therefore hold that in law the transaction is unimpeachable." Now it may be true that a transfer by Ali Jawad to his second wife of all his property in satisfaction of her dower may be a valid and unimpeachable transaction, but that is not the sole question for determination. Having found that the transfer to his second wife was made by Ali Jawad for the purpose of defeating his first wife's claim and depriving her of the fruits of her successful litigation, it was necessary for the learned District Judge to determine whether or not the second wife was a party to the improper conduct of her husband. In other words whether or not sale combined with her husband in carrying out the transaction in question for the improper purpose of defeating the claims of the first wife. If she did so combine, she would-not be a transferee in good faith. It was further alleged that there was in reality no real and genuine transfer by the husband to his second wife. Before therefore we can determine this appeal we must have definite findings upon the following two issues: (1) Whether the transfer of the 6 of December 1901, was a real transaction or merely colourable? (2) Was the defendant Nazir-un-nissa a transferee of the property comprised in that transfer in good faith?