1947 (8) TMI 5 - HC - Indian Laws

Court rules unregistered transaction as sale, not gift; plaintiff entitled to limited share. Appeal dismissed.

The court concluded that the transaction was deemed a sale rather than a valid oral gift (hiba-bil-ewaz) due to the lack of registration. As a result, the ... - Issues Involved:1. Validity of oral gift (hiba-bil-ewaz) in lieu of dower debt.2. Whether the transaction was a sale requiring registration.Detailed Analysis:1. Validity of Oral Gift (Hiba-bil-ewaz) in Lieu of Dower Debt:The primary issue was whether Nazar Ali could validly make an oral gift of his share to Mt. Shahzadi in lieu of her dower debt. The plaintiff claimed that Nazar Ali made an oral gift of his share to his wife, Shahzadi, in lieu of her dower debt, which Shahzadi later sold to the plaintiff. The trial court supported this claim, holding that the oral gift was valid and that Shahzadi was entitled to sell her share to the plaintiff.However, the appellate court disagreed, holding that since the gift was made orally and not by a registered deed, Shahzadi did not acquire any valid title. The court modified the decree, stating that the plaintiff was entitled to partition of only a one anna share that Shahzadi inherited, not the entire share claimed.The judgment reviews various precedents, noting that the Calcutta High Court has consistently held that such transactions, though described as hiba-bil-ewaz, are not true hiba-bil-ewaz but sales, requiring a registered instrument. The judgment cites several cases, including *Abas Ali Shikdar v. Karim Buhsh Shikdar*, *Saburannessa v. Sabdul Sheikh*, and *Sarifuddin Mohammad v. Mohiuddin Mahammad*, to support this view.The Lahore High Court also adopted this view in *Fateh Ali Shah v. Muhammad Baksh*, where a similar transaction was deemed a sale. The Oudh and Allahabad courts had conflicting decisions, but the judgment aligns with decisions that view such transactions as sales.2. Whether the Transaction was a Sale Requiring Registration:The judgment extensively discusses whether the transaction was a sale requiring registration under Section 54 of the Transfer of Property Act. The Calcutta High Court's view, supported by the Lahore High Court and the Privy Council, is that a hiba-bil-ewaz in lieu of dower is a sale and must be effected by a registered instrument.The judgment references *Mt. Asalat Fatima v. Lala Shambhu Deyal* and *Md. Zahi Khan v. Mannu Sahu*, where the courts held that such transactions were sales requiring registration. The Allahabad High Court in *Mt. Saiful Bibi v. Abdul Aziz Khan* also held that transfer of immovable property in consideration of dower debt was a sale.The judgment criticizes the reasoning in *Mt. Kulsum Bibi v. Shiam Sunder Lal*, where the transaction was viewed as two distinct gifts. The court found this reasoning strained and artificial, emphasizing that the transaction is a sale in all its legal incidents.The judgment also discusses the Privy Council decision in *Kamarunnissa Bibi v. Hussaini Bibi*, noting that the decision did not address whether the transaction was a true hiba-bil-ewaz or a sale. The court concluded that the transaction was a sale, requiring registration, and affirmed the lower appellate court's decree.Conclusion:The court held that the transaction in question was not a true hiba-bil-ewaz but a sale as defined in the Transfer of Property Act. Consequently, the oral gift was invalid without registration, and the plaintiff was entitled only to the one anna share inherited by Shahzadi. The appeal was dismissed with costs, affirming the lower appellate court's decree.