ALLAH JAWAI Versus ALLAH DITTA

A divorced wife has by this second appeal, challenged the judgment and decree passed in first appeal, whereby a judgment and decree for possession of a house transferred to her in lieu of dower, passed by the trial Court, was reversed.

2. The appellant's case was that at the time of her marriage in 1951, her husband (respondent) transferred the house in dispute in her favour in lieu of her dower, which amounted to Rs. 1,000. Apart from the fact that this transfer was witnessed by several persons, who were examined as her witnesses, a recital in this behalf was also made in the last column of Nikah Nama (Copy Exh. P/1) ; and further that she took the possession of and resided in the same house till her divorce in 1961, when she was turned out by the respondent. She asked for the restoration of the possession of the house, of course, subsequent to the divorce ; but on refusal of the respondent, filed a suit in forma pauperis for possession. The respondent denied that he had transferred the house in dispute to the appellant in any manner including in lieu of dower. He also denied the delivery of possession. On the question of Nikah Nama he did admit having signed it but allegedly without reading it. Some technical objections including that of limitation were also raised. The following issues were framed

"(1) Whether the suit is within limitation?

(2) Whether the defendant has given the house to the plaintiff in lieu of dower?

(3) Whether the suit has been correctly valued for the purpose of court- fee and jurisdiction?

(4) Relief."

3. Arguments have been addressed in this appeal on issue No. 2 only. The learned trial Court took note of the following pieces of evidence and circumstances for deciding this issue in favour of the appellant :‑

(i) Three P. Ws., against whom no criticism was levelled, supported the appellant that at the time of Nikah the house in dispute was given to the appellant in lieu of dower which was Rs. 1,000 ;

(ii) the Head Vernacular Clerk of District Council appeared to produce the relevant Nikah Register containing the Nikah Nama which bears the entry that the respondent gave the house in dispute to the appellant in lieu of her dower (Rs. 1,000) at the time of Nikah ;

(iii) the admission by the respondent under cross‑examination that he did sign the Nikah Nama ;

(iv) the admission of the respondent that the plaintiff resided in the house in dispute till the date of divorce ;

(v) the respondent did not produce any evidence in rebuttal with regard (o what happened at the time of Nikah except that he recorded his own deposition making bare denial of the claim made by the appellant ;

(vi) even though the Nikah Nama is not registered, it is admissible in evidence.

In conclusion the learned trial Judge observed as follows :‑

"The plaintiff has brought sufficient oral evidence on the file to prove the issue. These witnesses were present at the time of Nikah, fixing of the dower and the giving of the house. The defendant has not produced any evidence in rebuttal. Taking into consideration the evidence on the file, the issue (No. 2) is decided in affirmative."

4. The learned first Appellate Court in its judgment did not specifically consider the oral and circumstantial evidence as noted above. Instead the Nikah Nama was treated as the only evidence supporting the claim of the appellant in respect of the transfer of the house in lieu of dower. After noting some case‑law on the point of registration of such like documents, learned Judge came to the conclusion that the transaction being a transfer in the nature of sale, it could not be effected without a registered instrument. After distinguishing some rulings relied upon by the learned trial Judge, it was concluded "that the Part Nikah, copy of which is Exh. P/1 does not create any title in the property for want of registration. The respondent cannot claim transfer of the house in dispute on the basis of this unregistered document. She could however, sue for the recovery of Rs. 1,000 if permitted by the Law of Limitation."

5. It may straightaway be observed that the learned first Appellate Court has not rejected the oral and other circumstantial evidence in support of the case of the appellant ; nor the finding given by the learned trial Court on fact that sufficient oral evidence had been adduced to prove that the house in dispute was given to the appellant in lieu of her dower, has been upset. During the arguments in this appeal as well, nothing has been said to dilute the effect of the finding of fact by the learned trial Judge which is based on evidence other than the disputed Nikah Nama. After going through the evidence and hearing both the learned counsel, I feel satisfied that even if the document Exh. P/1 is excluded from consideration, there is enough evidence to sustain the finding of fact on Issue No. 2 arrived at by the learned trial Court.

6. If this were the only controversy, the learned first Appellate Court, in all probability would have dismissed the appeal of the respondent and might have affirmed the decree passed in favour of the appellant. The consideration which, it appears, weighed with the learned Judge was that "a gift to wife in lieu of dower should be treated as sale and a registered instrument was necessary", to effectuate it. In other words, it appears that the learned Judge was of the view that even if the transfer of the immovable property in lieu of dower was otherwise proved ; unless it is made through a registered instrument, it will have no legal effect. It was perhaps, for this reason that the learned Judge thought it unnecessary to consider the oral evidence.

7. I agree that there is some case‑law which gives prima facie support to the view taken by the learned first Appellate Court. At the same time it cannot be denied that the precedent law on the question of nature of the transaction in question, has not maintained sufficient consistency so as to hold one view to the exclusion of the other. In most of the cases the circumstances involved therein made all the difference. It is not necessary to mention all the rulings of various High Courts on this subject ; because they have been considered and discussed in detail in some of the post independence rulings of this Court as also in a recent pronouncement of the Supreme Court. They are :‑

(1) Dorab Khan v. Mst. Sabyani P L D 1952 Lah. 421.

(2) Fazal Ahmad v. Mst. Rakhi P L D 1958 Lah. 218.

(3) Khuda Bakhah and others v. Mst. Khudija Bibi P L D 1968 Lah. 1001.

(4) Asghar All alias Zafar Alam and another v. Mst. Naseem Akhtar P L D 1969 Lah. 467.

(5) Gulzar Khan v. Mst. Shahzad Bibi and another P L D 1974 S C 204.

It needs to be observed that in the case of Ahuda Bakhsh and others, my learned brother K. E. Chauhan, J. took note of scores of rulings on the question of the nature of transaction in cases like the present one, and discussed in detail the difference between four types of hiba (gifts): pure and simpe' ; true hiba‑bil‑ewaz' ; false hiba‑bil‑ewaz' and hiba‑ba‑shartul- ewaz'. While dealing with true hiba‑bil‑ewaz, his Lordship, after noticing the views of textbooks writers and case‑law including rulings of the Privy Council, relied on an Oudh case Abdul Hamid v. M. Abdul Ghani and others (AIR 1934 Oudh 163), to observe that no writing or regiccrxtion is necessary in this type of gift. In the said case from Oudh, a Division Bench was pleased to rule that the Muslim Law recognises transfers by sale as well as by means of hiba‑bil‑ewoz. It treats them both as distinct and separate forms of transfer. One of the rules of Muslim Law is that an oral gift is valid. Section 129 of Transfer of Property Act provides that nothing in Chapter VII of that Act which relates to gifts shall he deemed to affect any rule of Muslim Law. Such a gift must, therefore, be held to be valid unless it can be treated as a sale within the definition given in section 54, Transfer of Property Act. Their Lordships were not prepared to hold that all cases of hiba‑bil‑ewaz must be treated as sales within the definition given in that section. The same subject was also dealt in another Division Bench ruling from Allahabad High Court in Msi. Kulsum Bibi v. Bashir Ahmad and others (AIR 1937 All. 25) ; wherein the question of the nature of transfer of immovable property, by a husband to his wife in lieu of her dower, was involved. It was held that such a transfer was clearly divisible into two distinct transactions ; namely, a gift of property by the husband to his wife and a gift by the wife of her right to recoverd ower from her husband. The whole transaction, amounted to hiba‑bil‑ewaz, and it could not become invalid only because it was not registered. It was further held that if other conditions qua gift are fulfilled ; and even if it is oral, the transaction amounts to hiba‑bil‑ewaz and is valid notwithstanding absence of a registered instrument ; because registmtion was not made compulsory either by Transfer of Property Act or by any other law. Their Lordships of the Supreme Court in the cast of Gulzar Khan dealt with the question of the nature of transfer of immovable property to a wife in consideration of dower, in the context of the question whether it amounted to sale and was thus pre‑emptible. The precise questions on whether it amounted to sale and was noted as follows :‑

"(a) that the High Court has erred in thinking that the transaction was a gift and not a sale ; and

(b) that in any case, the High Court was not competent, while acting in second appeal, to disturb the concurrent finding of fact recorded by the two Courts below as to the nature of the transaction."

Their Lordships approved the ruling of this Court in the case of Durab Khan already cited and held as follows :‑

"We find that the learned Judge in the High Court has placed reliance on Durab Khan v. Mat. Sabyani (P L D 1952 Lah. 421) for reaching the conclusion that the transaction in dispute was to be treated as a gift and not a sale. While delivering the judgment of the Court, S. A. Rehman; J. (as he then was), observed that such a transfer may have some incidents of a sale proper, and therefore, may be described as tantamount to a sale for certain purposes but according to the view consistently adopted so far as the Lahore High Court was concerned, such transaction is not subject to a right of pre‑emption as it involves an element of gift. Even the authorities cited on behalf of the pre‑emptor, leave the question, whether such a transaction should be regarded as a sale and not to be decided on the facts of each case.' In the body of the judgment a large number of cases were noted by the learned Judge. After perusing the judgment, we find ourselves in respectful agreement with the view taken in this case, and consider that the position is not altered by the obiter dictum in Mahabir Prasad arid another v. Syed Mustafa Hussain and others 168 I C 418, relied upon by the learned counsel. The point was not specifically discussed by their Lordships of the Privy Council and they simply remarked that in a number of cases such a transaction had been regarded as being in the nature of a sale. We are of the view that the considered opinion formed by the Lahore High Court in the case of Dorab Khan mentioned above, is the correct view to take in such cases, and no justification is made out for any departure there from."

8. Ordinarily in a transfer of immovable property by a Muslim husband to his wife in lieu of dower, there are two distinct gifts, one by each party to the other. The husband transfers by gift the property, while the wife makes the gifts of her right to recover dower‑in other words she makes a gift of the dower debt. The transaction is essentially hiba‑bil‑ewaz. This being the ordinary role, it needs to be observed that there might, be some exceptions, as visualised in some cases, depending upon peculiar circumstances thereof.

9. The transaction in the present case is not at all complicated. There is evidence and it has been found as a fact that at the time of Nikah, the respondent transferred the house in dispute to the appellant in lieu of her dower which was fixed at Rs. 1,000 The value of the be‑use as determined by the learned trial Court was Rs. 5,000 ; but this would not show that the transaction, by virtue of the real value of the house, got converted into any other form than hiba‑bil‑ewaz. Rather the value of the house being different and more as compared to the amount of dower, would further confirm the assumption that the transaction was hiba‑bil‑ewaz, and it was not at all a sale. As already considered such a transfer by a Muslim husband in favour of his wife in lieu of her dower being essentially a gift, was not required, tot be effected through a registered instrument. Therefore, while confirming the findings of fact by the learned trial Court, I set aside the finding of the learned first Appellate Court to the effect that the transaction in question is to be treated as sale. If it is not sale, then the second assumption of law made by the learned Judge that registered instrument was necessary to effectuate it, is also not correct. It is further observed that the provisions contained in Chapter VII of the Transfer of Property Act which Inter alia require making of a gift of immovable property only by registered instrument, do not apply to the present case which is of hiba‑bil‑ewaz by a Muslim‑such gifts are excluded by virtue of section 129 which provides that nothing in Chapter VII shall be deemed to affect any rule of Muslim Law.

10. In the light of the above discussion, it is held that ‑

(a) the transfer of the house in dispute by the respondent in favour of the appellant in lieu of her dower stood proved by oral and documentary evidence ;

(b) this transfer could be effected orally and the execution of an instru ment !n this behalf was not necessary ; and

(c) the document, in the form of entry in the Nikah Nama (Exh. P/1) relating to the transfer, was not compulsorily registrable.

19. In view of the above findings, I agreeing with the learned trial Judge allow this Appeal, decide issue No. 2 in favour of the appellant ; and while setting aside the judgment and decree of the learned first Appellate Court, restore that of the learned trial Court with costs throughout.

K. B. A. Appeal accepted.