Shaikh Mohammad Zobair vs Mt. Bibi Sahidan and Others

Shearer, J.—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.

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.

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. Maharaja of Darbhanga AIR 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. Mohammad Umar AIR 1917 Pat. 18, a decision of the Lahore High Court is Mohammad Hassain v. Safdar Mirza AIR 1933 Lah. 601, decisions of the Calcutta High Court are Abbas Ali v. Karim Baksh 13 C.W.N. 160 and Saburannessa Vs. Sabdu Sheikh and Others, . In attempting to support his argument, Mr. S.K. Mitra relied on the decision of the Chief Court of Oudh in Bashir Ahmad v. Zobaida Khatun AIR 1926 Oudh 186 , and on two decisions of the High Court of Allahabad Mt. Kulsum Bibi Vs. Shiam Sunder Lal and Another, and Mt. Kulsum Bibi Vs. Bashir Ahmad and Others . 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 u/s 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."

The decision is not exactly in point and is of no assistance to the respondents. The transaction, however, which the Allahabad High Court had to consider in Mt. Kulsum Bibi Vs. Bashir Ahmad and Others was a transaction similar to that with which we have to deal here, namely, a transaction by which a Mahometan woman was put in possession of certain property by her husband, and, in return, relinquished her dower debt, no dooument of any kind being executed by either of them. Niamatullah, J., after referring to certain passages in Baillie''s Digest on Mahomedan Law, Vol. I, p. 122, observed:

We do not think that according to Baillie, if a transaction called ''hiba-bil-ewaz'' has all the attributes of a true ''hiba-bil-ewaz'' known to the Mahomedan law, it should not be treated as such in India but should for all purposes be taken to be either a sale or an exchange. In our view, if a transaction can be shown to possess all the attributes of a true ''hiba-bil-ewaz'' there is no reason why it should not be recognized as such in British India. Where delivery of possession has taken place and the transaction is not affected by the doctrine of ''musha'', the party relying on it is entitled to have 9 it upheld even though both the gifts were made by word of mouth. The Transfer of Property Act does not apply to a gift by a Mahomedan. There is no other law which makes a registered instrument necessary for effecting a gift. We see no reason why two Muslims cannot, by an oral transaction, transfer to each other two properties, each in exchange of the other. Properly analysed, each makes a gift of his property to the other.

The general principle laid down may be correct. I see no reason, however, why it should be assumed that a transaction is a true ''hiba-bil-ewaz,'' merely because the property, which is the subject-matter of each of the two gifts, is separated property to which the doctrine of ''musha'' does not apply and in each case the donor has made over possession of that property to the donee. Moreover, in such a transaction as this, one of the two gifts is the gift of a debt by a creditor to her debtor and I very much doubt if such a gift can be made orally. Section 130, T.P. Act, applies to Mahomedans as much as to other communities, and I am inclined to think that a Mahomedan woman, wishing to release her husband from his liability to pay her dower, must, if the release is to be valid and binding, do so by means of an instrument in writing. However, that may be, the question whether any particular transaction is a true ''hiba-bil-ewaz'' or a sale is a question of fact. The Courts below appear to have fully appreciated the distinction between the two. No evidence seems to have been adduced to show that the formalities necessary to complete two separate gifts under the Mahomedan law were complied with, a point obviously of importance in deciding what the real nature of the transaction was. In my view, the Courts below were correct in deciding that it was a sale and, in any case, that finding is binding on us in second appeal.

The other conclusion at which the Courts below arrived is, as I have already said, that "under the deed of gift (Ex. A-2) Mt. Zobaida and Mt. Taslima got a right to remain in possession of the properties as long as the dower debt was not paid to them."

Whether the widow of a Mahomedan, who is in possession of his estate and is entitled to retain possession of it until her dower-debt has been paid, is competent to transfer that right is a point, on which there are several decisions of this Court some of which are at variance with others. The earliest decision is Nabijan v. Sahifan AIR 1923 Pat. 153. There, Das and Coutts, JJ. dealt with the matter very briefly, being apparently under the impression that the Privy Council had. already considered it in Ali Baksh v. Allahadad Khan (''10) 32 All. 551. That, however, was a decision not of the Judicial Committee, but of a Divisional Bench of the Allahabad High Court, consisting of Richards and Tudball JJ. Very shortly after the case in Nabijan v. Sahifan AIR 1923 Pat. 153 was decided the point again came before the same Divisional Bench in Musammat Bibi Makbulunnissa and Another Vs. Musammat Bibi Umatunnissa and Another, . Das, J. then, went into the point at much greater length, and expressed the opinion that, when the widow of a Mahomedan transferred her right to remain in possession of her husband''s estate until her dower-debt was satisfied, she was, in effect, transferring her security and that she could not do this without at the same time assigning the debt. Das J. observed that the assignment of the dower-debt was incident to the assignment of the security itself, and that the. transferee was entitled to retain possession of the property until the dower debt was paid, though where the transfer was without the privity of the persons bound to discharge the dower-debt, the transferee took the security subject to the state of account between the widow and the persons bound to discharge the dower debt at the date of the transfer, and any payment made by these persons to the widow after, but without notice of, the transfer must, in the absence of collusion, be allowed to these persons as against the transferee. A few days before the case in Musammat Bibi Makbulunnissa and Another Vs. Musammat Bibi Umatunnissa and Another, was decided, the point had come before another Divisional Bench consisting of Dawson-Miller C.J. and Mullick J. Their decision is reported in Abdur Rahman Vs. Wali Mohammad, .Dawson Miller C.J. there observed:

The lien on the property which gives the widow the right to possession until the debt has been discharged is not, in my opinion, an interest in property which can be severed from the right to dower and transferred as a separate interest. It is right to the possession of the property by the person entitled to be paid the dower as long as the debt is not discharged either by the income from the property or by payment by the heirs or others interested in discharging the debt. It certainly gives the widow the right to possession and it may be assumed, I think, that as long as she does not transfer her dower-debt and that debt remains undischarged, she may transfer for her life-time possession of the property, the proceeds of which belong to her until the debt is paid off. The possession of the transferee, in such a case, might be regarded as constructively her possession, and, in this sense, it would not be severed from the dower debt.

The remaining decision on the point is Mt. Sogia v. Mt. Kitaban A.I.R 1928 Pat. 224 . Kulwant Sahay, J. in delivering the judgment to which Das J. was a party, reiterated the view taken in Musammat Bibi Makbulunnissa and Another Vs. Musammat Bibi Umatunnissa and Another, , that a widow, in possession of her husband''s property in lieu of her dower-debt can transfer the security apart from the dower debt, and the transferee acquires a valid title so long as the debt is not satisfied. He expressed dissent from the decision in Abdur Rahman Vs. Wali Mohammad, . Mr. Syed Ameer Ali, in his well-known work on Mahomedan Law (Edn. 5, Vol. II at p. 450), says:

Under the Mahomedan law, there is no hypothecation without seisin, and, therefore, a widow has no absolute lien over any specific property of her deceased husband so as to enable her to follow it as in the case of a mortgage, into the hands of a bona fide purchaser for value. As stated already, the widow''s claim for dower is only a debt against the husband''s estate and has priority over legacies and the rights of heirs. But if she omits to put forward her claim for dower and assents to a person taking a legacy she cannot afterwards retract her assent. When, however, she has obtained actual and lawful possession of the estate of her husband, under a claim to hold it for her dower, she will be entitled to retain possession until the debt is satisfied, with the usual liability to account to the heirs.... If a widow, who has obtained possession of a property in lieu of dower, is dispossessed by the heir of her husband, such heir would take the property subject to her lien for dower.

Clause (d) of Section 6, T.P. Act, says: "An interest in property restricted in its enjoyment to the " owner personally cannot be transferred by him." It is clear that the dower debt of a Mahomedan widow is not properly speaking, a charge upon the property of her husband. Her right to realize her dower-debt from the income of the property depends on her either having been put in possession of the property by her husband during his lifetime, or on his heirs consenting, on his death, to her taking possession of it and remaining in possession until the dower debt is satisfied out of the income. The interest which she has in the property is, therefore, I am inclined to think, an interest restricted in its enjoyment to her personally, and, as such, is not capable of alienation. As I have just said, it does not amount to a charge and would not seem to be capable of being assigned in the way in which a charge can be assigned. To this extent I respect. fully agree with the views expressed by Dawson Miller C.J., and Mullick, J. in Abdur Rahman Vs. Wali Mohammad, . The point on which there is a difference of opinion between these learned Judges and Das, Coutts and Kulwant Sahay, JJ. is whether or not the widow can transfer her right to possession without also assigning to the transferee her dower-debt. Fortunately, for the purpose of the present appeal, it is not, I think, necessary to decide this point. In my judgment, neither of the conflicting decisions applies to the facts of the present case. The deed of gift (Ex. A-2) on which defendant 3 relies, does not purport to convey to Mt. Zobaida and Mt. Taslima either the dower-debt and the security therefore or the security alone. It purports to convey the absolute estate. Their Lordships of the Judicial Committee in (1925) 48 MLJ 667 (Privy Council) , were called on to construe a document which was apparently in similar terms. At page 159 of the Report their Lordships, observed:

It was contended, as their Lordships understood, that Mt. Maina Bibi had by the deeds of 1907 assigned both her dower debt and her right to hold possession of her husbands estate until that debt was paid. It is doubtful whether she could have done either of these things, but however that may be, it is clear she, in fact, never purported or attempted to do either of them. On the contrary, in those deeds she describes herself as the absolute owner of the property of her deceased husband, and purports to convey that absolute ownership to her donees. There is no ground for the contention, if it has been really put forward, that because these deeds fail to effect a transfer of the absolute interest with which they purport to deal they operate to transfer the widow''s dower debt and her right to hold possession of the lands till that debt is paid. By giving up the possession of the lands, as in her deeds she alleges she had done, she has undoubtedly lost her right to hold the possession of them.

The Courts below, in coming to the conclusion, which they did, would seem to have assumed that when a person purports to convey a larger interest in property than he actually possesses, such interest as he does possess must be deemed to have passed by the document to the transferee. It is, of course, true that when a person, whose title to property is defective, contracts to sell it, it is, as a rule, open to the purchaser to insist on the property being conveyed to him and the purchase money being redeemed. In the words of Lord Eldon, quoted in Dart, on Vendors and Purchasers (Edn. 8, page 925):

If a man having partial interests in an estate choose to enter into a contract representing it and agreeing to sell it as his own, it is not competent to him afterwards to say that, though he has valuable interests, he has not the entirety and that, therefore, the purchaser shall not have the benefit of his contract. For the purpose of this jurisdiction, the person contracting under these circumstances is bound by the assertion in his contract, and if the vendee chooses to take as much as be can have, he has a right to that and to an abatement.

Equity, however, will not enforce an agreement which is merely voluntary, even though it is contained in a deed. The equitable principles which are the foundation of the doctrine on which the Courts below seem to ''have relied, have no application whatever in the case of a gift which is the case we j have to deal with here. Das, J. in Musammat Bibi Makbulunnissa and Another Vs. Musammat Bibi Umatunnissa and Another, , seems to have had this clearly in mind, as he observed:

There is nothing to prevent her from putting some one else in possession of the property, and conferring on him the same right which she could exercise over the property. Having done so, she could not maintain ejectment against him, if she has received consideration for the transaction.

and again:

The position, then, is this: where a Mahomedan widow in possession of her husband''s property as a security for her dower debt, purports to sell the property....

It has to be remembered that in that case one of the two documents executed by the widow was a deed of sale and not a deed of gift. Even, therefore, if the view of the law taken by Das, J. is to be pre-furred to that taken by Dawson Miller C.J., the decision in Musammat Bibi Makbulunnissa and Another Vs. Musammat Bibi Umatunnissa and Another, is of no a distance to the present respondents. In Abdur Rahman Vs. Wali Mohammad, the opinion was expressed that in certain circumstances the possession of a third person might be deemed to be constructively the possession of the widow and the heirs-at-law might not in consequence be entitled to eject him. In that case, the widow purported to give away the property, subject, however, to her right of maintenance which she reserved at the rate of Rs. 60 per annum and which was to be a charge on the property. It could in such a case perhaps be argued with some degree of plausibility that the donee under the invalid deed of gift was in the position of an agent put in to manage the property for the widow, his remuneration being any income that might be derived from it in excess of the sum she had stipulated to be paid to her annually. It is clearly impossible to advance such an argument in the present case. Defendant 3 who seeks to resist the claim of the heirs-at-law or their transferees, was not put in possession of the property by the widow, nor is there any suggestion that part of the income from the property has to be or is still being paid to the widow. For these reasons the appeal must, in my opinion, be allowed and the suit must be decreed with costs in this Court and in the Courts below.

Meredith, J.

I agree. I reserve my opinion upon the question whether a Mahomedan widow''s right to retain possession as security for her dower debt is transferable either with or without the dower debt.