Hiba-bil-iwaz and limitation principles confirmed: transfer in lieu of dower was absolute, and the declaratory suit was timely.

A transfer by a husband to his wife in lieu of dower and maintenance was treated as an absolute transfer in the nature of hiba-bil-iwaz, not a pure gift subject to reversion to the donor's heirs. The transferee acquired heritable title, so succession on her death had to be worked out through her own estate and her heir was entitled to succeed. On limitation, a declaratory suit concerning incorporeal rights did not begin to run from an earlier adverse revenue entry alone; time started when the claimant's title was effectively infringed and possession was disturbed. The suit was therefore within limitation.

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Issues: (i) whether the transfer of the ancestral property to the wife was a pure gift attracting reversion to the donor's heirs, or an absolute transfer in the nature of hiba-bil-iwaz carrying heritable title to the donee's heirs; and (ii) whether the suit for declaration of title in respect of the mortgaged property was within limitation, and from which date limitation began to run.

Issue (i): whether the transfer of the ancestral property to the wife was a pure gift attracting reversion to the donor's heirs, or an absolute transfer in the nature of hiba-bil-iwaz carrying heritable title to the donee's heirs

Analysis: The transfer deed showed that the property was given in lieu of dower and maintenance, and the transaction was therefore not a pure gift governed by the rules of hiba. A transfer for consideration of this kind partakes of the character of a sale or hiba-bil-iwaz and confers an absolute estate on the transferee. On the donee's death, succession had to be determined according to the law applicable to her estate, not by reverter to the donor's heirs.

Conclusion: The transfer was an absolute transfer in the nature of hiba-bil-iwaz, and the property did not revert to the donor's heirs. The donee's heir was entitled to succeed.

Issue (ii): whether the suit for declaration of title in respect of the mortgaged property was within limitation, and from which date limitation began to run

Analysis: A mere adverse assertion of title or an adverse revenue entry did not by itself extinguish the plaintiff's right in incorporeal property. Limitation for a declaratory suit began when the plaintiff's right was actually jeopardized by effective action and dispossession, not from the earlier order reversing mutation. The operative infringement occurred when the revenue entry was given effect to and possession was disturbed, and the suit was brought within six years from that date.

Conclusion: The suit was within limitation, and time ran from 4 January 1917, not from 11 November 1913.

Final Conclusion: The decree in favour of the respondents was affirmed because the donee's estate was absolute and the declaratory claim was instituted in time.

Ratio Decidendi: A transfer by a husband to his wife in lieu of dower and maintenance is not a pure gift but an absolute transfer akin to sale, and limitation for a declaratory suit concerning incorporeal rights begins when the claimant's title is actually and effectively infringed.

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