A gift in lieu of dower debt is not a true hiba-bil-ewaz, but really a sale and has to be by a registered instrument, as required under S. 54 of the Transfer of Property Act, if the immoveable property transferred is valued more than Rs. 100/-.

K.B.N.SINGH, J.

1. The Income Tax Appellate Tribunal, Patna Bench, Patna, has made a reference to this Court under S. 256 (1) of the Income-tax Act, 1961 for opinion on the following question of law :

"Whether on the facts and in the circumstances of the case, the income from the house property falls for inclusion in the total income of the assessee?"

2. The assessee is an individual. For the assessment year 1965-66, the corresponding accounting year of which ended on the 31st March, 1965, the assessee claimed that the income from the residential house, situate in the Town of Patna, was not assessable in his hands, as the house was transferred to his wife in discharge of dower-debt. The Income-tax Officer rejected the claim of the assessee as there was no registered document evidencing the transfer of the house in discharge of the dower-debt and included the net income from the residential house in the income of the assessee, relying on a Bench decision of this Court in the case of Mahomed Usman Khan V/s. Amir Main, AIR 1949 Pat 237. The assessee filed an appeal before the Appellate Assistant Commissioner, who allowed the claim of the assessee, following the decision of the Tribunal in the assessees own case for the assessment year 1963-64, in Income-tax Appeal No. 10544 of 1964-65, dated the 12th April, 1966. The Departmant thereupon filed an appeal, which was dismissed by the Tribunal, following its earlier decision. If may be mentioned that against the order of the Tribunal for the assessment year 1963-64, also an identical question came up to this court in a reference and the question was reframed and answered in favour of the assessee in Tax Case No. 10 of 1968. The High Court affirmed the view taken by the Tribunal that there being a valid and completed gift of the house to the wife, in lieu of dower-debt, the income of the house was not taxable in the hands of the assessee.

3. When the present case came up for hearing before a Bench of this court, it observed that the Bench, which had heard the earlier reference to Tax Case No. 10 of 1968, relating to assessment year 1963-64, had not noted the contrary view taken in the case of Mohamad Usman Khan, AIR 1940 Pat 237 (supra). In the case of Mohamed Usman Khan if was held that an oral gift of an immovable property worth more than Rs. 100/-by a Mohemmadan in favour of his wife, in lieu of the dower debt, does not pass a valid title in her favour inas much as such a transaction is not a true Hiba-bil-Ewaz, but a sale, and so can only be effected by a registered instrument. On account of the conflict between the two Bench decisions of this Court, this case has been referred to a larger Bench and that is how it is before us. During the pendency of the reference the original assessee Syed Haider Imam died and in his place his heirs have been substituted as opposite party.

4. From a perusal of the orders of this court in Tax Case No. 10 of 1968, it is apparent that the controversy lay on the question as to whether, in pursuance of the gift, possession was actually taken by the donee, in view of the fact that both the assessee and his wife were living in the said house before the gift and also continued to live therein thereafter. Relying on decisions in the cases of S. V. S. Mohd. Yusuf Rowther V/s. Mohammad Yusuf Rowther, AIR 1958 Mad 527, Ma Mi V/s. Kallander Ammal, AIR 1927 PC 22 and Bibi Maniran V/s. Mohammad Ishaque, AIR 1963 Pat 229 as also on the commentary. Fyzee in his Outlines of Mohammadan Law, Third Edition at page 224, it was held that the action on the part of the husband in getting the name of the wife mutated can be taken to be sufficient proof of delivery of possession and it was not necessary for the husband to walk out of the house to make delivery of possession in favour of the wife to be effective. All these decisions, relied upon in Tax Case No. 10 of 1968, were in cases of Hiba, pure and simple, by a Mohammadan father to his sons as in the Madras ca