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Friday, January 8, 2016


The Hon’ble Karnataka High Court in Mr. Syed Basheer Malik and Another Versus Smt. Jameela Begum since dead by LRs and Others had held following important observations in respect of sale deed proof, Mahr, Hiba/Gift, Essentials of Hiba, Registration of Hiba, Hiba-Bil-Iwaz and Lis pendence 

The sale deed after execution is registered in accordance with the provisions of Indian Registration Act, 1908, unless its execution by the person by whom it purported to have been executed is denied, the production of the said document is sufficient to prove the said document.

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’s sisters. 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 change 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, 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 of 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.

“A hiba or gift 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. Every Mohammedan 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.

The three essentials of a gift under Mohammedan law are as under:
There should be:-
(1)   A declaration of gift by the donor
(2)  An acceptance of the gift, express or implied, by or on behalf of the donee, and
(3)  Delivery of possession of the subject of the gift by the donor to the donee.
If there conditions are complied with, the gift is complete.

Under Mohammedan Law a “hiba-bil-iwaz”, as distinguished from a hiba or simple gift, is a gift for a consideration. It is in reality a sale, and has all the 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 lawfully transferred by it, though this cannot be done in the case of a hiba. Two conditions, however, must concur to make the transaction valid, namely, (1) actual payment of consideration (iwaz) on the part of the donee, 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 donee. 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 of 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.   

Hiba or Gift under Mohammedan 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 Mohammedan 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.

It is settled legal position that 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[e] 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 the property during the pendency of the suit, an alienation 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. 

Prepared by: S. Hemanth