Registration of transfer of immovable property necessary.

The main question that arises for consideration in this appeal is whether a conveyance by a Mahomedan in favour of his wife in satisfaction of her mahar debt is a sale within the meaning of the Transfer of Property Act and therefore requires to be in writing duly registered or whether it is a transaction called “Hibabil-ewaz” not requiring a registered document. The question arises in this case in the following circumstances.

A suit was instituted by the plaintiff for a declaration of his title to the suit property and for setting aside an order passed by the District Munsiff of Prodattur, as Small Cause Court Judge, in E. A. No. 617 of 1943 in execution proceedings in S. C. No. 54 of 1941. The plaintiff claimed his title to the suit property under a sale deed, Ex. P-I, dated 2nd May, 1941, from one Mahaboob Bi, the widow of one Kasim Peeran, for valuable consideration. According to him, Kasim Peeran in order to discharge the mahar debt due to his wife orally conveyed the suit property before his death to her and put her in possession thereof, and later on his widow conveyed her right, title to and interest in the suit property to the plaintiff for consideration. Defendants 1 to 8 are either the children or the widows of one or other of the brothers of Kasim Peeran, who claimed title to the suit property as heirs to Kasim Peeran.

The suit was resisted by the appellant-defendants on the ground that Kasim Peeran did not convey the suit property to his wife as no mahar debt was due to her, and even if there was such a conveyance it did not transfer any right in the property to Mahaboob Bi, as it was not effected by a registered instrument.

The trial Court held that the conveyance in favour of Mahaboob Bi was not valid in law, as it was not evidenced by a registered instrument and that therefore Mahaboob Bi in her turn could not convey any title to the property which she herself did not get from her husband. But at the same time, it found that the widow was entitled to a possessory lien, namely, the right to retention of the property in lieu of her mahar claim in addition to her right as a sharer and that right she could validly convey to the plaintiff under Ex. P-1. On appeal from this decision the lower appellate Court thought that it was unnecessary to go into the question whether the plaintiff acquired the rights of Mahaboob Bi to a possessory lien in the view it took of the nature of the transaction between Mahaboob Bi and her husband. Relying upon a decision of the Allahabad High Court reported in Mt. Kulsum Bibi v. Shiam Sunder Lal1, which laid down that such a transaction was technically speaking a gift and not a sale, though its precise legal position would lie midway between gift property so called and sale, it held that the transaction in question was not a sale within the meaning of the Transfer of Property Act and that therefore not required to be evidenced by a registered instrument. In that view of the matter it dismissed the appeal and confirmed the decision of the trial Court.

In this appeal against that judgment and decree the same point, namely, whether the conveyance in favour of Mahaboob Bi by her husband was a sale within the meaning of the Transfer of Property Act and therefore had to be evidenced by a registered instrument was raised. On this question while there is no direct decision of this Court there is a conflict of judicial opinion between the various other High Courts. The High Courts of Calcutta, Lahore, Patna and Nagpur took the view that a transaction of that character is nothing but a sale and therefore where the property is immoveable and has value of Rs. 100 and upwards it must be effected by a registered instrument as required by section 54 of the Transfer of Property Act relating to a sale, while the Allahabad High Court took a different view, namely, that a transfer by a Husband of immoveable property to his wife in lieu of her dower debt is not a sale but a transaction of a true “Hiba-bi