Shamsuddin vs Smt. Ameer Jahan Begum and Another

S.P. Srivastava, J.—This second appeal arises out of a suit No. 547 of 1978 filed by Smt. Amri Jehan Begum, the Respondent No. 1 wherein Suhail Ahmad, the husband of the Plaintiff had been impleaded as Defendant No. 2 while Shamshuddin, the present Appellant had been impleaded as Defendant No. 1. The Plaintiff- Respondent in the aforesaid suit had prayed for a decree declaring that she was the exclusive owner in possession of the house in dispute, the sale-deed in respect whereof executed on 10.4.1987 by the husband of the Plaintiff in favour of Shamshuddin was null and void and legally ineffectual. Besides the above relief, the Plaintiff also prayed for a decree of permanent prohibitory decree restraining Shamshuddin from evicting the Plaintiff from the house in execution of the decree passed in suit filed by him being suit No. 333 of 1978 decided on 5.10.1978 against Suhail Ahmad.

The Plaintiff''s case, in nut shell, was that at the time of her marriage with Suhail Ahmad, an amount of Rs. 5,000 had been settled as ''Manar-Indul-Talab'' which was not paid by her husband at the time of her marriage. On account of strained relations between the Plaintiff and her husband which developed during the year 1964-65, the Plaintiff demanded the payment of the ''Mahar'' in the year 1965 but as Suhail Ahmad did not have any money with him, he made an oral gift of the premises in dispute which was purchased by him in the year 1959, in favour of the Plaintiff on 14.10.1965. The gift was an oral gift which was accepted by the Plaintiff. With the acceptance of the gift by the Plaintiff, it was asserted that the husband put her in proprietary possession of the premises in dispute whereafter she continued to be exclusive owner in possession of the same in which capacity, she is still continuing. The Plaintiff in exercise of her right built a house on the plot of land gifted to her and got her name recorded in the municipal records. Suhail Ahmad, however, in order to harm the Plaintiff executed a sale-deed on 10.4.4967 in favour of Shamshuddin in respect of the aforesaid property without having any right, title or interest therein. The transferee Shamshuddin in collusion with the husband of the Plaintiff succeeded in obtaining a decree in S.C. Suit No. 333 of 1978 decided on 4.10.1978 for the eviction of Suhail Ahmad from the house in dispute and on the strength of this decree wanted to dispossess the Plaintiff from the said house for which there could be absolutely no justification.

The aforesaid suit was contested by Shamshuddin the present Appellant on various grounds denying the claim of the Plaintiff and asserting that she had full knowledge of the Suit No. 333 of 1978 filed by Shamshuddin against Suhail Ahmad and the decree passed therein, it was also asserted that the present suit had been filed by Suhail Ahmad himself acting in collusion with the Plaintiff and it was he who was doing Pairvee in the case on behalf of his wife. it was also asserted that the house in dispute had not been constructed by the Plaintiff and she was not possessed of any means to do so. The factum of oral gift set up by the Plaintiff was denied asserting that she was residing in the house in dispute as a wife of Suhail Ahmad who was continuing to be in possession of he said house as a tenant of the answering Defendant at a rental of Rs. 45 per month. it was also asserted that initially the Defendant No. 1 had filed a suit No. 616 of 1973 for recovery of an amount of Rs. 1,600 towards arrears of rent against Suhail Ahmad which was decreed in 1975 and in the execution of the said decree, the decretal amount was recovered after deducting salary of Defendant No. 2. Thereafter S.C. Suit No. 333 of 1978 was filed for recovery of arrears of rent and ejectment of Defendant No. 2 which was decreed on 14.10.1978. When this decree was put in execution wherein the order for the recovery of possession was issued, the present suit was filed to evade and obstruct the execution of decree, passed in S.C. Suit No. 333 of 1978 with a mala fide intention.

The trial Court after appraisal of evidence on the record after noticing the various contradictions in the oral evidence led by the Plaintiff came to the conclusion that the claim of the Plaintiff about the property in dispute having been gifted to her orally was not acceptable and she bad railed to establish an oral gift as alleged, consequently it was held that the Plaintiff has not succeeded in proving that she was owner in possession as such of the premises in dispute.

The trial Court also expressed the view that even if it be assumed that the husband of the Plaintiff had orally gifted the premises in dispute to her in that event the oral gift being in lieu of ''Mahar'' had to be treated as sale which required registration. Consequently the trial Court concluded that the alleged oral gift relied upon by the Plaintiff was legally in operative. The trial Court further came to the conclusion that Suhail Ahmad, the husband of the Plaintiff was continuing to be in possession of the property in dispute in the capacity of the tenant of the Defendant No. 1.

On the question relating to the validity of the sale deed dated 10.4.1967, the trial Court expressed the view that the execution of the aforesaid deed was not disputed and it did convey the title in favour of the vendee. The trial Court also negatived the claim of the Plaintiff that she had constructed the house in dispute as claimed.

Coming to the conclusion that the Plaintiff had failed to establish her title in respect of the premises in dispute and it have been established that she was residing therein as a wife of Suhail Ahmad, who was a tenant of the decree holder Shamshuddin, it was held that she had no right to object to the execution of the decree and in fact was bound by the same and liable to eviction in the execution proceedings in question. In the aforesaid view of the matter, the trial Court dismissed the suit vide the judgment and decree dated 14.1.1981.

Aggrieved by the aforesaid decree, the Plaintiff filed an appeal. The first appellate Court reserved the finding of the trial Court relating to the oral gift claimed by the Plaintiff relying upon the fact that pursuant to the gift the name of the Plaintiff had been entered in the record maintained by Nagar Palika in respect of the premises in dispute as an owner thereof, The first appellate Court observed that even though there may be contradictions in the oral evidence tendered by the Plaintiff, they lost their significance in view of the oral gift having been implemented in the sense that pursuant thereto the name of the donee had been entered in the relevant records maintained by the Nagar Palika showing her as owner thereof. In this connection, reliance was placed on an order passed by the Prescribed Authority, Aligarh in appeal No. 48 of 1977 filed u/s 160 of the Nagar Palika Adhiniyam dated 14.2.1979, wherein it was observed that in the Nagar Palika records, Smt. Amir Jehan Begum was recorded as the owner of the house in dispute. The first appellate Court further came to the conclusion that even if the house in dispute had been orally gifted by Suhail Ahmad in favour of his wife in lieu of her ''Mahar'' yet the said transaction could not be deemed to be a Hiba-bil-Iwaz. The first appellate court observed in this connection that Amir Jehan Begum had stated that Suhail Ahmad had given the premises to her on being pressed by the people residing in the Mohalla over which she had raised the house. The first appellate Court further observed that the Plaintiff had nowhere stated that Suhail Ahmad had gifted the premises in lieu of ''Mahar''. Consequently it was held that the gift could not be deemed to be ''Hiba-bil-Iwaz'' or for some consideration. Since the first appellate Court treated the gift in question to be a simple gift contemplated under the Mohammedan Law which was duly acted upon, the decree passed by the trial Court was reserved holding that such transfer did not require registration. With the result that on 10.4.1967 when Suhail Ahmad purported to transfer he promises in dispute in favour of Shamshuddin, he had no right, title or interest therein which could be transferred. The sale-deed dated 10.4.1967 relied upon by Shamshuddin was accordingly held to be null and void and decree passed in S.C. Suit No. 333 of 1978 inexecutable against the Plaintiff. On the aforesaid findings, the first appellate Court decreed the suit of the Plaintiff as prayed.

Feeling aggrieved the Defendant No. 1 Shamshuddin has preferred this second appeal praying for the reversal of the decree passed by the first appellate Court and the restoration of the decree of the trial Court.

It has been urged in support of the appeal that the finding of the first appellate Court in regard to the nature of the gift relied upon by the Plaintiff is manifestly erroneous and cannot be sustained in law. It is urged that the oral gift relied upon by the Plaintiff could not be deemed to be a simple gift but was a ''Hiba-bil-Iwaz'' in reality and therefore, in the absence of a registered instrument, the title in respect of the premises in dispute could not be deemed to have been transferred in favour of the Plaintiff as claimed.

I have heard the leaned counsel for the Appellant and have carefully perused the record.

In para 5 of the plaint Smt. Amir Jehn-Begum has clearly that Suhail Ahamad, her husband neither had any cash with him to pay the dower debt nor had any means to pay the same and in these circumstances, it had been decided that in case the land in dispute was gifted by him to the Plaintiff in that event, the dower would be deemed to have been discharged and it was according to the aforesaid decision that the husband of the Plaintiff did make the oral gift in favour of the Plaintiff on 14.10.1965 which oral gift had been accepted by the Plaintiff.

Smt. Amir Jehan Begum examined herself as PW1. In her deposition before the trial Court she stated that she was married to Suhail Ahmad on 18.12.1959 and ''Mahar'' Indul ''Talab'' was specified to be an amount of Rs. 5,000 which amount was not paid at the time of marriage. In her examination in chief, Smt. Amir Jehan Begum had clearly and categorically stated that the land in dispute had been given to her in lieu of ''Mahar''. In her cross- examination also she had stated that the land in dispute had been given to her by Suhail Ahmad in discharge of the dower debt. Chaudhary Mohammad Ali who had been examined as PW 2 by the Plaintiff had also asserted that the land in dispute had been gifted in lieu of dower debt. These witnesses had also categorically stated that the land in dispute was given by Suhail Ahmad in lieu of the dower debt and was accepted by Amir Jehan Begum as such. Similar was the statement of PW 3 Shabbir Hussain.

Considering the pleadings contained in paragraphs 5 and 6 of the plaint and the admissions referred to above there can be no escape from the conclusion that the oral gift relied upon by the Plaintiff was in lieu of the dower debt. The observation of the first appellate court that the Plaintiff Amir Jehan Begum has nowhere stated that the land in dispute had been given to her in lieu of dower and that no such suggestion was made to her in her cross-examination as witness is totally baseless and purely conjectural. The aforesaid observation occurring in the judgment of the first appellate Court is further vitiated in law on account of being based on complete misreading of the oral evidence tendered by the Plaintiff. The first appellate Court has ignored the relevant pleading and the relevant admissions referred to herein above, while making the aforesaid observations. As pointed out by the Apex Court in its decision in the case of Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, , an admission is the best evidence that an opposite party can rely upon and though not conclusive is decisive of the matter, unless successfully withdraw or proved erroneous. Again, in its decision in the case of Thiru John Vs. The Returning Officer and Others, , the Apex Court had observed that an admission if clearly and unequivocally made is the best evidence against the party making it had though not conclusive shifts the onus on the maker on the principle that ''what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted the fact admitted must be taken as established.

Consequently the finding recorded by the first appellate Court that the oral gift in question was simple gift cannot be upheld being perverse, and the aforesaid finding cannot be sustained in law.

In the facts and circumstances as noticed above, there can be no manner of doubt that the oral gift relied upon by the Plaintiff was of the category of Hiba-bil-Iwaz''. The question therefore, which arises for consideration is as to whether such a gift in lieu of dower debt made orally could be deemed to have the effect of transferring the title in respect of immovable property in dispute in favour of the donee.

It may be noticed in this connection that ''Mahar'' or dower is a sum that becomes payable by the husband to the wife on marriage being contracted. ''Mahar'' is not exchange or consideration given by the man to the woman for entering into contract, but an effect of he contract imposed by the law on the husband as a token of respect of its subject, the woman. ''Mahar'' may either be prompt of exigible (in Arabic ''Mujjal'' i.e. payable immediately on marriage) if demanded by he wife or deferred (in Arabic ''muwajjal'') i.e. payable on the dissolution of marriage or on the happening of some specified event.

In the present case according to the Plaintiff''s own case as set up in the plaint, the land in dispute had been purchased by Suhail Ahmad for an amount of Rs. 250 on 3.10.1959. According to her the ''Mahar-Indul-Talab'' which had been specified as a sum of Rs. 5,000 had not been paid by the Plaintiff. The aforesaid Mahar'' therefore, was clearly the prompt one i.e.''Mahar muajjal'' and the amount of Rs. 5,000 constituted ''Mahar-e-musamma''.

The right of the wife to receive the liability of the husband to make available to her what is known as ''Mahar'' constitutes as salient feature of the Muslim matrimonial law.

The transfer of property by the husband to the wife gives up her legal right to receive the Mahar'' and in consideration thereof obtain the property.

Under the Mohammedan Law when a person governed by it signifies his willingness to make to another, an immediate or unconditional transfer without consideration, of the ownership of or right in existing and specified property with a view to obtain the assent of that to such transfer he is said to make a declaration of gift. Neither the declaration nor acceptance of gift governed y the Mohammedan Law need be made in writing whether the subject of the gift is movable or immovable. Further, whatever, may validly form the subject of gift may validly form the subject of the ''Iwaz'' or return. In other words anything that is capable of being given in as a return is sufficient to form an ''Iwaz''. It may be the release of a claim against the donor.

''Hiba-bil-Iwaz'' known to Mohammedan Law is made out of two distinct gifts. Each party to the transaction being donor in one and donee in the other with the result that the rule as to delivery of possession and the limitation imposed by the doctrine of ''Musha'' are applicable to both gifts so that if a transaction is treated as ''Hiba-bil-Iwaz'' as contemplated by Muslim jurists, the delivery of possession for both the gift is essential but neither of the gifts should be affected by the doctrine of ''Musha'' which forbids gift of undivided property.

It may be noticed that according to the original conception of ''Hiba-bil-Awaz'' any gift in which the consideration was paid in presenti or subsequently was included within the definition of the term. However, in India the term is applied only to such transfer for which consideration is paid as part of the same transaction. A subsequent transaction whereby the donee under the earlier gift make some payment or relinquishment as the case may be to the donor of that gift is not tacked to the earlier gift so as to bring it in the category of ''Hiba-bil-Iwaz'' as envisaged under the ancient Mohammedan Law. It is in reality a sale.

The oral gift to the wife in lieu of dower debt in our contrary cannot be treated to be a true ''Hiba-bil-Iwaz'' as noticed herein above but is a sale as defined u/s 54 of the Transfer of Property Act. Accordingly when a Mohammedan in India makes a gift of the property to his wife in lieu of dower debt there is only one transaction in which the consideration is directly opposed to the object of the gift. The grant and the consideration are parts of one single transaction which amounts to sale in all its legal incident.

In earlier decisions of the Awadh Chief Court and this Court such transactions were held to be sales but later decisions took a different view. The conflict has now been resolved and set at rest by a later decision of this Court tendered by a Full Bench in the case of Ghulam Abbas Vs. Mt. Razia Begum and Others, . The Full Bench of this Court clearly held that an oral transfer of an immovable property worth more than Rs. 100 could not be validly made by a Muslim husband to his wife by way of gift in lieu of dower debt which also exceed Rs. 100. It was further observed that such a transaction is neither a gift nor a combination of gifts which can be made orally. The Full Bench Emphasised that such transfer is a sale which be effected by means of a registered instrument only.

In the aforesaid circumstances, there can be no manner of doubt that a transfer of an immovable property by a Mohammedan husband in favour of his wife discharging the dower-debt does not involve two reciprocal gift but is only one contract. Such ''Hiba-bil-Iwaz'' as recognised in our country is a sale within the meaning of Section 54 of the Transfer of Property Act and unless made by a written instrument duly registered, it cannot convey title to the person in whose favour it is made. Consequently an oral conveyance of an immovable property worth more than Rs. 100 by Mohammedan husband in favour of his wife in lieu of dower cannot be held to be valid. In this connection, it may further be noticed that transfer of property by the debtor to the creditor in payment of the debt constitutes a sale and this principle equally applies to the transfer of a property by a Mohammedan husband in favour of his wife towards payment of her ascertained dower debt.

In the facts and circumstances of the case as brought on the record, the oral gift relied upon by the Plaintiff could not vest in her any right, title or interest in the property in dispute. Further in view of the finding recorded by the trial Court to the effect that the Plaintiff had failed to establish that she had constructed the house in dispute having not been upset by the first appellate Court, there could be no justification in law for interference in the decree passed by the trial Court.

In the result, this second appeal succeeds. The decree passed by the first appellate Court is accordingly set aside and that of the trial Court is restored. There shall, however, be no order as to costs.