JUDGMENT

Daniels, J C - The question for decision in this appeal is whether a transfer by a Muhammadan husband of immovable property of the value of over Rs. 4,000 to his wife in lieu of her dower debt which is said to have amounted to Rs. 6,000 requires a registered instrument or not. The question depends on whether it is a gift of the kind known in Muhammadan law as hiba bil ewaz or a sale. The chapter of the Transfer of Property Act which deals with gift does not affect any rule of Muhammadan law, whereas the provisions of Section 54 of the Transfer of Property Act are applicable to persons of all religions.

2. The suit arises out of execution proceedings. The property in suit was attached in execution of a decree as being the property of Jafar Khan to whom it originally belonged. The appellants are Jafar Khan's sons and daughter, and their case is that Jafar Khau made an oral gift of the property to their mother Mt. Maksuman Bibi in lieu of her dower debt. The Court below has held that the transaction amounted to a sale and could only be made by a registered instrument, and the only plea argued before me in appeal is that this finding is incorrect. The Court; below relies on the decision in Asalat Fatima v. Shambu Dayal [1911] 14 O.C, 214. That decision is directly opposed to the appellants contention. It lays down that a transfer of immovable property of the value of the over Rs. 100 in lieu of dower cannot be recognised unless made by a registered instrument. The appellants however rely on the decision in Ram Prasad v. Rahat Bibi [1916] 18 O,C, 367, where a similar transaction was treated as one of hiba bil ewaz. I have therefore to consider which of these two decisions I should follow. I might have referred the decision to a bench but I have not been asked by the parties to do so, and the question appears to me to be free from any real doubt. The decision in Ram Prasad v. Rahat Bibi [1916] 18 O,C, 367 was given in a pre-emption case and the question whether a registered instrument was necessary did not arise. The decision was also a very short one it does not contain any discussion of authority, and the contrary decision in Asalat Fatima v. Shambu Dayal [1911] 14 O.C, 214 does not appear to have been cited.

3. The appellant's learned Counsel has referred me to the discussion of the question of hiba bil ewaz in Tyabji's Muhammadan Law, 2nd Edition, pages 460 to 463. The authority of that learned author is really against the appellants. He describes a hiba bil ewaz as consisting of two separate acts of donation, i.e., of mutual or reciprocal gifts of specific property between two persons each of whom is alternately donor and donee. A makes a gift to B and B makes a gift in his turn to A, so that the gift is a return for the gift made to him by A. He says that such reciprocal gifts are quite familiar to us in modern times, though in these days the written gift would usually be made on a subsequent occasion and not immediately after the original gift. This is entirely different from t he transfer of property in lieu of a money price even though that price consists of the extinction of a debt, and indeed the same learned author states on page 494 of the same book that the provisions of Chatter VIII of the Transfer of Property Act would in his opinion cover a gift of an actionable claim. Where the transfer of property is made in lieu of a sum of money, whether the money is paid in cash or by the extinction of a dower debt, the transaction comes within the definition of sale in Section 54 which is applicable to a transaction between Muhammadans. Besides the case of this Court the high authority of Mahmood, J., is in support of the same view. In Fida Ali v. Muzzaffar Ali [1883] 5 All. 65 he held that a transfer in lieu of dower was a sale. There is a Calcutta decision to the same effect in which it was directly decided that Section 54 of the Transfer of Property Act applied to a transaction of this kind-Abbas Ali Shikdar v. Kar