Tajunnisa Bibi Ammal vs Rahmath Bibi Ammal

Ramachandra Ayyar, J.—This second appeal arises from the decree of the Subordinate Judge, Kumbakonam, in Appeal Suit No. 79 of

1955 reversing the decree of the District Munsif, Kumbakonam, in Original Suit No. 122 of 1954. The Plaintiff is the Appellant. The Plaintiff filed a

suit to recover possession of the suit properties together with mesne profits. The Defendant is her mother''s sister. The Defendant has a son by

name A.D. Sultan Rowther, who has not been evidently fortunate in his married life. He first married a wife and divorced her after a few months.

He then married a second wife and divorced her in about a year. Eight months thereafter the Plaintiff was married to him. Evidently there was some

difficulty in getting a suitable bride for Sultan Rowther. On the eve of the marriage, a settlement by way of gift of the suit properties was made by

the Defendant to the Plaintiff, her sister''s daughter. That settlement was undoubtedly made in consideration of the marriage. Exhibit B-1 is the

settlement deed executed by the Defendant in favour of the Plaintiff on 22nd June 1948. The document was registered on 24th June 1948, on

which date, the marriage of the Plaintiff with her cousin brother Sultan Rowther took place. He was evidently fickle minded, and a short time after

the marriage he abandoned the Plaintiff and it appears that he has taken to another wife. The Plaintiff filed the present suit for recovery of

possession of the properties from her mother-in-law, the Defendant. That suit was resisted on the ground that the gift was sham and not intended

to be acted upon and that it could not validly convey the properties as possession of the properties was not given to the Plaintiff on the date of the

gift. The learned District Munsif held that the settlement deed was executed in consideration of the marriage and that there was delivery of

possession and that that was enforceable as a gift. He, therefore, decreed the suit. The Defendant took up the matter in appeal to the Subordinate

Judge''s Court, Kumbakonam. The learned Subordinate Judge without really appreciating the relationship between the parties has disposed of the

case in a rather mechanical manner. He has held that subsequent possession of the properties always remained with the Defendant and her son

and, therefore, there could not have been a valid delivery of possession within the meaning of the Muhammadan Law on the date of the gift. In that

view he held that there was no valid gift in favour of the Plaintiff. There was also another aspect of the case put forward on behalf of the Plaintiff

before him. That was that the gift in the present case was not a gift pure and simple but a hiba-bil-iwaz. On the question also, the learned

Subordinate Judge held against the Plaintiff and allowed the appeal and dismissed the suit. The Plaintiff has come forward with this second appeal

against the judgment of the lower Appellate Court.

I am not satisfied that the lower Court was correct in either of the two conclusions arrived at by it. A hiba-bil-iwaz has been defined in Mulla''s

Mahomedan Law (fourteenth edition), at page 155 in Section 168 thus:

A hiba-bil-iwaz, as distinguished from a hiba or simple gift, is a gift for a consideration. It is in reality a sale, and has all the incidents of a contract of

sale. Accordingly possession is not required to complete the transfer as it is in the case of a hiba, and an undivided share (mushaa) in property

capable of division may be lawfully transferred by it, though this cannot be done in the case of a hiba. Two conditions, however, must concur to

make the transaction valid, namely, (1) actual payment of consideration (iwaz) on the part of the donee, and (2) a bona fide intention on the part of

the donor to divest himself in presents of the property and to confer it upon the donee.

As regards the latter point there is no difficulty in the present case. Exhibit B-1, the settlement deed, itself says,

I have left the said properties in your possession and enjoyment this day itself.

As regards the first requisite, Mr. Gopalaratnam, the learned Advocate for the Defendant, contends that a hiba-bil-iwaz could only be for

money consideration and it could not be justified, if consideration was other than money. In this connection he relied upon the decision in Rahim

Bakhsh v. Muhammad Hasan ILR (1888) All. 1. It was held in that case that a hiba-bil-iwaz, or a gift for an exchange, is a transaction made up of

two separate acts of donation, i.e., of mutual or reciprocal gifts of specific property between two persons, each of whom is alternately donor and

donee, and that it did not include the case of a gift in consideration only of natural love and affection or of services or favours rendered. So the

learned Counsel for the Respondent contends that there can be no hiba-bil-iwaz in respect of a promise to marry. I do not agree. The decision in

Rahim Bakshsh v. Muhammad Hasan ILR (1888) All. 1. related to a case where there was a gift in recognition of past services. The case is only

an authority for the proposition that mere natural love and affection could not afford a sufficient consideration to convert a mere gift or hiba into a

gift for consideration or hiba-bil-iwas. That case cannot justify the contention raised on behalf of the Defendant that consideration for hiba-bil-iwaz

should be only money consideration. Promise to marry has been recognised as a valid consideration, and this could particularly be so when under

the Mohamedan Law the concept of the marriage is that it is only a contract. Therefore, when the Plaintiff agreed to marry the Defendant''s son,

there was sufficient consideration for the Defendant to execute a settlement deed, as under the law a consideration can proceed from a third party.

In Muhammad Esuph Ravutan v. Pattamsa Ammal ILR (1899) Mad. 70, a Muhammadan executed a deed of settlement of certain land in lieu of

dower on his wife. It was held that it was a bona fide transaction by way of hiba-bil-iwaz and was supported by consideration, which was said to

be a release by the wife of her right to dower. Mr. Abdur Rahim, the learned Counsel for the Plaintiff contends that there are two types of hiba-bil-

iwaz, one which he calls true or the original hiba-bil-iwaz, and the second, which he styles as a false hiba-bil-iwaz, which is a device adopted by

the Indian lawyers to meet the exigencies in certain situations. In this connection he has drawn my attention to the decision in Sarifuddin

Muhammad Vs. Mohiuddin Mohammad and Others, According to the learned Counsel, for a true hiba-bil-iwaz, consideration in the shape of

money is not necessary but any consideration would suffice. In support of that contention he refers to a passage in Tyabji''s Muhammadan Law,

third edition, page 449, Section 408. The proposition is stated thus:

Whatever may validity form the subject of hiba may validly form the subject of iwaz or return ; and doing or abstaining from doing some thing may

operate as iwaz, whether such act or abstention has been antecedently stipulated for, or subsequently to the primary gift accepted as iwaz. Quaere,

whether part of the subject of hiba may be validly accepted as iwas.

As I stated above, I am of opinion that there is no authority for the proposition that an iwaz should necessarily be in the shape of money.

Anything which is a valid consideration under the law would be an iwaz, and, therefore, would constitute proper consideration for a hiba-bil-iwaz.

Applying that test, I am of opinion that in the present case the settlement deed, exhibit B-1, is only a hiba-bil-iwaz, the consideration thereof being

the agreement to marry the Defendant''s son. In such a case even if there had been no delivery of possession, the gift would be valid and the

Plaintiff would be entitled to maintain the suit for ejectment. This finding is sufficient to dispose of this appeal. But I am of opinion that the finding of

the learned Subordinate Judge on the question of possession also is wrong. It has been held that the question of possession has got to be judged

having regard to the relationship between the donor and the donee. In the present case, the donor was no other than the maternal aunt-cum-

mother-in-law of the Plaintiff. The properties should be held to be in the possession of the Plaintiff''s husband as the mother-in-law was admittedly

a purdanishin lady. If the Plaintiff''s husband''s possession is proved, then the Plaintiff herself should, in the circumstances, be held to be in

possession having regard to the solemn declaration contained in the gift deed. Even if exhibit B-1 is considered merely as a gift pure and simple, I

am of opinion that the learned District Munsif is correct in his conclusion that there has been delivery of possession. The judgment and decree of

the lower Court are, therefore, set aside that of the District Munsif restored and this appeal is allowed with costs throughout.