2015 Supreme(Kar) 1226

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
N. Kumar, B. Veerappa, JJ.
Syed Basheer Malik and Ors. - Appellants
Vs.
Jameela Begum and Ors. - Respondents
R.F.A. No. 960/2003
Decided on : 31-01-2015

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Order 23, Rules 1, 3, 3-A: [N. Kumar & B. Veerappa, JJ] Remedy against consent decree - Held, The only remedy available to the party to a consent decree to avoid such consent decree, is to approach the Court which recorded the compromise and made a decree in terms of it and establish that there was no compromise. In that event, the Court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. No appeal is maintainable against the order of the Court recording the compromise or refusing to record the compromise in view of deletion of clause (m) of Rule 1 Order 3 of CPC. The consent decree operates as estoppel and is valid and binding unless it is set aside by the Court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order 23 CPC. Therefore no appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) of CPC.

        On facts held, in the instant case admittedly, defendants-9 and 10 are not parties to the compromise. Their claim and contentions are decided on merits. As they are aggrieved by the said finding, they have a right to prefer an appeal under Section 96 of CPC. Therefore the appeal filed is maintainable and there is no substance in the contention that the appeal is not maintainable.

       INDIAN EVIDENCE ACT, 1872 - Section 61: [N. Kumar & B. Veerappa, JJ] Proof of document - Registered sale deed - Held, unless its execution by the person by whom it is purported to have been executed is denied, the production of the said document is sufficient to prove the said document. Therefore the contention that the sale deed is not proved is without any substance.

       MOHAMADAN/MUSLIM LAW - "Hiba/Gift": [N. Kumar & B. Veerappa, JJ] Concept - "A hiba or gift is "a transfer property, made immediately, and without any exchange, "by one person to another, and accepted by or on behalf of the latter. Every Mohamedan of sound mind and not a minor may dispose of his property by gift. Writing is not essential to the validity of a gift either of moveable or of immovable property. It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift.

       MOHAMADAN/MUSLIM LAW - "Hiba/Gift": [N. Kumar & B. Veerappa, JJ] The three essentials of a gift under Mohammedan law are as under: There should be: (1) a declaration of gift by the donor; (2) acceptance of the gift, express or implied, by or on behalf of acceptance the done, and (3) delivery of possession of the subject of the gift by the donor to the done. If these conditions are complied with, the gift is complete. It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible. Registration of a deed of gift does not cure the want of delivery of possession under Mohammedan Law. There would be gift of immovable property by a husband to the wife of her by wife to the husband.

       MOHAMADAN/MUSLIM LAW - Hiba-Bil-Iwas: [N. Kumar & B. Veerappa, JJ] Under Mohamedan law a "hiba-bil-iwaz", as distinguished from a hiba or simple gift for a consideration. It is in reality a sale and has he 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 lawful transferred by it, though this cannot be done in the case of hiba. Two conditions, however, must concur to make the transaction valid, namely, (1) actual payment of consideration (iwaz) on the part of the done, and (2) a bona fide intention on the part of the donor to divest himself in praesenti of the property and to confer it upon the done. The adequacy of consideration is not material; but whatever its amount, it must be actually and bona fide paid. Such a transaction is called the hiba-bil-iwaz of India as distinguished from "true" hiba-bil-iwaz. Therefore, hiba-bil-iwaz means, literally, a gift for an exchange. It is of two kinds, one being the true hiba-bil-iwaz, that is, hiba-bil-iwaz as defined by the older jurists, and the other hiba-bil-iwaz of India. In the former there are two acts, namely, (1) the hiba, which is followed by (2) an independent and uncovenanted iwaz (return gift, that is, an iwaz not stipulated for at the time of hiba. In the latter there is only one act, the iwaz or exchange being involved in the contract gift as its direct consideration. In the true hiba-bil-iwaz, the hiba and iwaz, are both governed by the law of gifts. There must be delivery of possession both of the hiba and iwaz, and they are both subject to the doctrine of mushaa. The transaction consists of two distinct acts of donation between two persons each of whom is alternately the donor of one gift and the donee of the other.

       MOHAMADAN/MUSLIM LAW - Hiba (Gift): [N. Kumar & B. Veerappa, JJ] There is clear distinction between ’gift’ with consideration and ’gift’ without consideration. "Hiba-bil-ewaz" means, literally, gift for an exchange and it is of two kinds, according as the ewaz or exchange, or not, stipulated for at the time of the gift. In both kinds there are two distinct acts; first, the original gift, and second, the ewaz or exchange. But in the Hiba-bil-ewaz of India, there is only one act, i.e., ewaz, or exchange, being involved in the contract of gift as it is a direct consideration. The transaction which goes by the name of Hiba-bil-ewaz in India is, therefore, in reality not a proper Hiba-bil-ewaz of either kind, but a sale; and has all the incidence of a consequence. Accordingly, possession is not required to complete the transfer of it, though absolutely necessary in gift, and what is of great importance in India, an undivided share in property capable of division may be lawfully transferred by it, though that cannot be done by either of the forms of the true Hiba-bil-ewaz. Hibas or gift under the Mohammadan Law is transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter.

       MOHAMADAN/MUSLIM LAW - Hiba (Gift) - in lieu of ’Mahr’: [N. Kumar & B. Veerappa, JJ] ’Mahr’ is a debt. If the amount of ’Dower’ is ascertained and the transfer is made in lieu thereof, the transfer would be for a price. Then, it is a gift for consideration having all the legal characteristics of sale and in as much as Section 52 of the between of Property Act, applies even to a sale transaction the meaning of this section - If the value of-the property is more than Rs.100/- and therefore Section 54 of the Transfer of Property Act is attracted.

       MOHAMADAN/MUSLIM LAW - "Mahr": [N. Kumar & B. Veerappa, JJ] Concept - Under Mohammedan Law, ’Dower’ or ’Mahr’ is any amount or property which has some monetary value and the wife is entitled to get it from her husband. ’Mahr’ or ’Dower’ is a sum of money or other properties which the wife is entitled to receive from the husband in consideration of the marriage. ’Dower’ is an obligation imposed upon the husband as a mark of respect to the wife. The husband may settle any amount he likes by way of ’Dower’ upon his wife though it may be beyond his means and though nothing may be left to his heirs after payment of the amount. But he cannot in any case settle less than ten dirhams. The amount of ’Dower’ may be fixed either before or at the time of marriage or after marriage and can be increased after marriage. If the amount of ’Dower’ is not fixed, wife is entitled to proper ’Dower’ even if the marriage was contracted on the express condition that she should not claim any ’Dower’.

        In determining what is "proper" dower, regard is to be had to the amount of dower settled upon other female members of her father’s family such as her father’ sisters. The dower becomes confirmed:- (a) by consummation of the marriage or (b) by a valid retirement or (c) by the death of either the husband or the wife. The amount of ’Dower’ used is usually split into two parts, one called ’Prompt’ which is payable on demand and the other called ’Deferred’ which is payable on dissolution of the marriage by death or divorce. The ’Dower’ ranks as a debt and the widow is entitled, along with other creditors of her deceased husband, to have it satisfied on his death out of his estate. Her right, however, -is no greater than that of any other unsecured creditor, except that she has a right of retention to the extent mentioned in Sec.296 below. She is not entitled to any charge on her husband’s property, though such a charge may be created by agreement. The right of widow to retain possession of her husband’s property under a claim for ’Dower’ does not carry with it the right to alienate the property by sale, mortgage, gift or otherwise. If sale alienates the property, the alienation is valid to the extent of her own share. It does not affect the shares of other heirs of her husband. The ’Dower’ is inherent in the concept of marriage under the Mohammedan Law and it is an integral part is it. It is a sort of deterrent to the husband’s absolute power of pronouncing ’divorce’ on his wife. So the main object of ’Dower’ is to offer protection to the wife against such arbitral power. ’Dower’ is something which has some value in terms of money and the wife is entitled to receive it as ’gift’ from her husband for entering into a contract of marriage.

       TRANSFER OF PROPERTY ACT, 1882 - Section 52: [N. Kumar & B. Veerappa, JJ] Lis Pendens - Rights of transferee - The effect of Section 52 of the Transfer of Property Act is not to render transfers effected during the pendency of the suit by a party to a suit void. It only renders such transfers subservient to the rights of the parties to the said suit as may be eventually determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The mere pendency of the suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The principle underlying Section 52 is that the litigating party is exempted from taking notice of title acquired during the pendency of the litigation. The section only postulates a condition that the alienation will in no manner affect the rights of other party under a decree which may be passed in the suit unless the property is alienated with the permission of the Court. Therefore, in the absence of any prescription under statute, from alienating made by a party to the suit is valid and legal and it is not void ab initio. However, transfer remains valid, subject of course, to the result of the suit. If the person from whom the property is purchased succeeds in the suit, the purchaser succeeds. If the party loses, the purchaser loses and therefore the question whether alienation is valid or not is determined after determination of rights of the parties in the suit finally.

        A transferee pendent lite steps into the shoes of the transferor who is a party to the suit. He acquires all the rights of the transferor. The pendency of the suit would not come in the way of his acquiring such right, if the transferor ha may any such right. If the transferor has no right, he acquires none. This is a matter which is finally adjudicated in the suit. The judgment and decree passed in the suit is equally binding on him, as his transferee, whether he is impleaded as a party to the suit or not. Transferee from a party of property which is subject matter of partition can exercise all the rights of the transferor. Such transferee is representative in interest of the party from whom he has acquired that interest. Rule 10 of Order 22 of the Code of Civil Procedure clearly recognizes the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made. It may be that if he does not apply to be impleaded, he may suffer by default on account of any order passed in the proceedings. The position of a person on whom any interest has developed on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. When a party to a decree dies, leaving some heirs, in the final decree proceedings, shares may be allotted to such heirs. Similarly, in the case of transferee pendente lite, if there is no dispute, final decree Court can proceed to make allotment of the properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the matter of partition can exercise all the rights of the transferor. These is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also seek for an equitable partition, even if the transfer is during the pendency of the suit. Such a construction of Section 54 of the Code of Civil Procedure advances the cause of justice.

       TRANSFER OF PROPERTY ACT, 1882 - Sections 122, 123, 129 & Registration Act, 1908 - Section 17: [N. Kumar & B. Veerappa, JJ] Gift/Hiba under Mohammadan Law - Held, the essential ingredients of a gift is a transfer of an immovable property made voluntarily and without consideration. Similarly, Hiba or Gift under Mohammadan Law is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter. Though Section 123 of the Transfer of Property Act, makes it mandatory that a gift must be effected by a registered instrument, by virtue of Section 129 of the Transfer of Property Act, Chapter VII which deals with gifts under the Transfer of Property Act, does not affect any rule of Mohammadan Law. Therefore, Hiba, the subject matter of whatever value need not be registered as required by Section 123. It can be oral, but it should be adequately proved….Section 129 of the Transfer of Property Act, preserves the rule of Mohammadan Law and excludes the applicability of property by a Mohammadan. A gift without consideration of property or substance of a thing could be oral, it does not require registration once three conditions which are necessary to constitute a valid gift, namely, a declaration of ’gift’ by Donor and acceptance of the gift, express or implied by or on behalf of the ’Donee’ and delivery of possession of the subject of the gift by Donor to Donee completes the gift….However, Hiba-bil-ewaz in India being a gift a exchange, it is in the nature of a sale and if the subject matter is immovable property, then, it can only be by a registered instrument as proved under Section 54 of the Transfer of Property Act. Oral gift, in discharge of money owned to the done being one for consideration, amounts to sale. It is not pure and simple Hiba but Hiba-bil-ewaz and if the property of the value of Rs. 100 or more the case of gift for consideration such as love and affection, it would be a transfer of ownership in exchange for price paid or promised or part paid and part promised, then it has to be by a registered document.