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Regular Second Appeal No. 150 of 1959, decided on 18th January 1968.

Gift‑‑Gift deed reciting gift of house to bride by father of bridegroom in consideration of her contracting marriage with his son‑Contract valid and binding when such marriage takes place ‑ Such marriage settlement an exception to rule against a stranger to contract enforcing it‑Such gift governed by general principles of contract and should not be made complicated by introducing principle of Muhammadan Law relating to gift‑Contract Act (1X of 1872) Ss. 2(d) & 23.

N. Safyed Sajjad Ali Khan v. Mst. Badshah Begum A I R 1936 Oudh 385; Nawab Khawaja Muhammad Khan v. Nawab Husaint Begum (1910) 37 1 A 152; Pran Mohan Das and others v. Hari Mohan Das and others A I R 1925 Cal. 856; Thirumula Subbu Chetti v. Arunachalam A I R 1930 Mad. 382; 52 Cal. 425; 53 Mad. 270; Salliyal Kotakkat Mannakkal Narayannan Nambudirl v. Patticharavoor alias Charavoor Manakkal deceased Narayanan Namburdiripad daughter Unnimayya Antharjanam and another A I R 1945 Mad. 165; Muhammad Muin‑ud‑Din and another v. Jamal Fatima A I R 1921 All. 152; Muhammad Ali Akbar v. Fatima Eegum A I R 1929 Lab. 660; Mst. Hamidan v. Muhammad Umar A I R 1932 Lab. 65 and Ma E. Tin v. Ma Byaw and others A I R 1928 Rang. 286 (2) ref.

Gift‑Hiba, kinds and nature of.

Muhammad Faiz Ahmad Khan v. Ghulam Ahmad Khan and others (1881) 3 All. 490; Kulsum Bibi v. Bashir Ahmad and others A I R 1937 All. 25 (P C); Sharif‑ud‑Dirt Muhammad v. Mohiuddin Muhammad and others A I R 1927 Cal. 808; Ashid Bai v. Haji Muhammad Abdullah, etc. I L R 31 Bom. 271; Rahim Bakhsh v. Muhammad Hassan I L R 11 All. 1; Bailie's Digest of Muhammadan Law Vol. I, pp. 35, 479, 512 & 541; Tayyabji pp. 446‑447; Hedaya, pp. 488 & 559; Abdul Hamid v. M. Abdul Ghani and others A I R 1934 Oudh 163; Hafiz Feroz‑ud‑Din v. Sardar Shah and others A I R 1924 'Lab. 562; Sahiba Begum v. Atchamma (1868) 4 M H C R 115; Satyendra Nath Rai Chaudhury v. Fulsom BIN and others A I R 1932 Cal. 625; Fida Ali and others v. Muzaffar Ali and others I L R 5 All. 65; Nathu and others v. Shadi I L R 37 All. 522; Jainulabideen Marakayar and others v. Habibulla Sahib A I R 1928 Mad. 430; Durab Khan v. Mst. Sabyani P L D 1952 Lab. 421; Abirajan Eewa v. Sh. Kabil 541 C 542; Mst. Lal Bibi v. Nawab Maasoom Ali 38 I C 794; Rasool Bee and others v. Madari Mahaldar Ghulam Kasim 23 1 C 802; Khodaijatul Kubra v. Kirishna Pershad and others A I R 1930 Pat. 530; Gopaldass v. Sakina Bibi A I R 1936 Lab. 307; Mst. Aimna v. Lakmichand and others A I R 1934 Lab. 705; Mst. Umrao Bibi and others v. Muhammad Bakhsh and others 55 1 C 236; Fateh Ali and others v. Muhammad Bakhsh and others A I R 1933 Lab. 601; Abbas Ali Shikdar v. Karim Bakhsh Shikdar (1909) 4 I C 466; Esahaq Chaudhry v. Abedunnessa Bibi I L R 42 Cal. 361; Saburannessa v. Sabdu Sheikh and others A I R 1934 Cal. 693; Muhammad Usman Khan v. Amir Mian and others A I R 1949 Pat. 237; Shaikh Muhammad Zobair v. Mst. Bibi Sahidan and others A I R 1942 Pat. 210; Muhammad Eusph Ravutan v. Pattamsa Ammal I L R 23 Mad. 70; Masum Ali Sahib and others v. Illuri Modin Sahib A I R 1952 Mad. 671; Dana Meah Choudhury and another v. Gagan Chandra and others P L D 1955 Dacca 39; Mst. Zainab Bi v. Jamal Khan and others A I R 1951 Nag. 428; Ghulam Abbas v. Mst. Razia Begum and others A I R 1951 All. 86; Rustam Ali v. Abdul Jabbar and others A I R 1923 Cal. 535; Mst. Gulbaro v. Akbar Khalid A I R 1936 Pesh. 178 Bailie's Digest of Muhammadan Law, Vol. II, p. 177 and Taj‑un Nisa Bibi Ammal v. Rehmat Bibi Ammal (1959) 1 Mad. L J 221 ref.

Sardar Shah Bokhary for Appellants.

Rashid Murtaza Qureshi for Respondent.

Date of hearing: 20th December 1967.

Mst. Ume Kulsoom (hereinafter called the plaintiff) filed a suit for a declaration that the house mentioned in the plaint was her exclusive property and that Mst. Khadeja Bibi (hereinafter called the defendant) had no connexion with the same, with a consequential relief of an injunction restraining the defendant from getting the aforesaid house partitioned. The case, as stated in the plaint, was that the house in dispute belonged to one Ghulam Muhammad, father of the husband of the plaintiff: The said Ghulam Muhammad by means of a deed, dated the 26th of March 1932, registered on the 4th of April 1932, gave the said house to the plaintiff in lieu of her dower. The plaint went on to state that the defendant was the daughter of the said Ghulam Muhammad and sister of the husband of the plaintiff. The defendant had filed a suit for partition of some properties against her brother Khuda Bakhsh, in which she had shown the house in dispute as also liable to be distributed by partition. It was further averred that the said defendant had obtained a preliminary decree of partition on the 22nd of December 1956, with regard to the house in dispute. On these pleadings, it was averred that the defendant had no connexion with the said house and the relief mentioned in the plaint was claimed. The defendant contested the suit and the pleadings of the parties gave rise to various issues out of which now only one, namely, Issue No. 3 is the subject‑matter of controversy before me. The said issue reads as follows:

"Issue No. 3.‑Whether the plaintiff is the owner of the property fn suit as a result of the valid gift effected by gift deed, dated the 20th of March 1932, executed by Ghulam Muhammad in her favour (O. P.)

The trial Court had held that Ghulam Muhammad had given the house in dispute to his daughter‑in‑law Mst. Ume Kalsoom (the plaintiff), in lieu of dower and the transaction amounted to a hiba‑bil‑ewaz which was tantamount to a sale. For such a transaction, according to the learned trial Court, delivery of possession was not essential. On the factum of gift, it found that the transaction of gift was duly proved by Muhammad Abdullah (P. W. 1), the scriber of the deed Khuda Bakhsh (P. W. 5). the husband of the plaintiff and the plaintiff herself (P. W. 6). The trial Court observed that the defendant had led no evidence in rebuttal and rather stated before the commission that she did not know as to whether her father gifted the house in dispute in favour of the plaintiff or not. After giving these findings, the trial Court decreed the suit of the plaintiff against the defendant with costs. The defendant filed an appeal where again only Issue No. 3 became the main subject of controversy. The learned District Judge held that the transaction in dispute was neither (a) a gift pure and simple and (b) nor a hiba‑bil‑ewaz. The learned District Judge was of the view that the gift was to take place on the happening of an event, namely, the marriage of the plaintiff with the son of the donor which might have or might not have taken place and thus being contingent or conditional in nature was void. It was not a hiba‑bil‑ewaz either because, according to the learned District Judge, there was no consideration on the part of the donee nor a bona fide intention on the part of the donor to divest himself in praesenri of the property With these observations, the learned District Judge held that the deed in question conferred no rights on the plaintiff and, as such, he accepted the appeal and dismissed the suit of the plaintiff with no order .as to costs. The plaintiff has come up in Second Appeal to this Court.

2. The first point to be considered is as to what is the nature of the transaction contained in the deed (Exh. P. 1). This deed, according to the translation made by the Translation Branch of this Court reads as follows :‑

"I, Haji Ghulam Muhammad, son of Mian Muhammad Ramzan, caste Hind, Tailor by occupation, resident of Mohallah Jindey Shah Madar, Outside Delhi Gate, Multan City, hereby acknowledge and reduce to writing in the enjoyment of my health and full senses and wisdom and without coercion of anybody else and of my own free‑will that the nikah of my real son Khuda Bakhsh has been proposed to be performed on the 24th of Ziqadh 1350 A. H. at my and my aforesaid sons' request, with Mst. Ume Kalsum, daughter of Muhammad Ibrahim, caste Hind, resident of Mohallah Jindey Shah Madar, Outside Delhi Gate, Multan City, at present resident of Khangarh, District Muzaffargarh, in lieu of prompt dower of Rs. 522 (Five hundred twenty two) through her father and I have promised to pay the entire aforesaid dower from my own pocket in place of my aforesaid son. Under these circum stances, I, with my own free‑will, have finally transferred in favour of Mst. Ume Kalsum, wife of my aforesaid son, in lieu of the aforesaid dower, a single‑storeyed house constructed with katcha and a bit pucca construction, consisting of one kotha a verandah, haveli with open space bounded by the door for entrance with thoroughfare in front of it and the intervening wall of this house in the east, house of Ghazi Muhammad and the intervening wall of this house in the west, house of Mohkam‑ud‑Din, Muhammad Nawaz and Shamas‑ud‑Din and the intervening wall of this house in the north and another house belonging to me and the intervening wall of the kotha and verandah of this house and the intervening wall of the courtyard and haveli of my other house in the south, measuring 60 yards pukhta Multani alongwith the underlying land and the entire other rights relating to it, situate in Mohallah Jindey Shah Madar, Outside Delhi Gate, Multan City, valued at Rs. 272 of which I am the sole owner and in possession of and which is not under any incumbrance of anybody else, which T had purchased from Faiz Bakhsh, son of Muhammad Bakhsh, caste Khokhar, resident of the said Mohallah, vide sale deed executed on the 20th of January 1930 and registered on the 28th of January 1930, at Serial No. 81, Bahl No. 1, Volume No. 781, at pages 26 to 29, along with the ornaments with the following detail:‑--

A pair of kangan made of gold, a kathmala made of gold comprising of five laras, A pair of Jhumkas made of gold alongwith a pair of k1ranphul made of gold, all valued at Rs. 250 and the house and aforesaid ornaments both valued at Rs. 522."

I will hand over the possession of the entire house owned by me to the wife of my aforesaid son the transferee, on the date of her nikah. I will hand over the possession of the ornaments owned by me, to the wife of my son, the aforesaid transferee on the date of her nikah, before the performance of her nikah according to the custom prevailing in our brother hood. From the time of her nikah, Mst. Ume Kalsum, wife of my son, the aforesaid transferee will be deemed to be the sole owner in possession, of the house and the ornaments owned by me, with every kind of right of transfer and all other proprietary rights. My heirs, my legal representatives and I have neither been left with any claim or concern with the ownership and possession of the house and the ornaments owned by me now nor in future, If afterwards any loss is caused to the transferee on account of some legal defect in this transfer deed, I along with my property of every kind will be entirely responsible for it. The cancellation of the entire writing, in part or in full, of this transfer deed on behalf of the aforesaid transferee, including the executant, the witnesses, father or other will‑wishing near collaterals of the wife of my son, the aforesaid transferee, will be illegal and void. The wife of my son, the aforesaid transferee, has also accepted this transfer deed through the guardianship of her father. Therefore, I have executed this transfer deed in favour of Mst. Ume Kalsum, wife of my son, the aforesaid transferee, so that it may serve the purpose of a certificate."

3. The salient features of the above‑mentioned deed are as follow:

(a) That the deed was executed on the 26th of March 193 by Haji Ghulam Muhammad, father of Khuda Bakhsh;

(b) that the marriage between Khuda Bakhsh, son of Haji Ghulam Muhammad and the plaintiff (Mst. Ume Kalsum) was to take place on the 2nd of April 1932;

(c) that the dower was fixed at Rs. 522 which was agreed to be paid by the father of Khuda Bux;

(d) that the dower was agreed to be paid in two ways, namely, by transfer of the house, which is the subject‑matter of the present litigation‑ and which was valued at Rs. 272 and also by settlement of certain ornaments on the wife and in this way making the total amount of Rs. 522;

(e) that the possession of the house was to be delivered on the day of the marriage and similarly the delivery of the ornaments was also to be given at the same time in accordance with the custom of the biradari;

(f) that the stove‑mentioned tamlik was accepted by the bride through her father and from this point of view she can be considered to be a patty to the contract. In the alternative from the point of view of the parents of the bride and the birdegroom, the contract was entered into by persons who were in loco parentis.

(g) that in the deed it was stipulated that from the date of nikah the house and the ornaments would exclusively belong to the bride who shall have all the powers of ownership over them and the donor nr his heirs or representatives would have no concern with the same."

4. In consideration for the above stipulations, it is now a common‑ground between the parties that the plaintiff Ume Kulsoom married Khuda Bakhsh, the son of the donor. According to Khuda Bakhsh (P. W. 5), and the plaintiff (P. W. 6), the "doll" of the bride came into the house in dispute and as such from the date of marriage slue got into its possession. Apart from the fact that there is no rebuttal of this aspect of the case, there is lot of corroborative evidence as well. Exh. P. 3 is a rent deed which was executed by one Ahmad Bakhsh in favour of the plaintiff on the 9th of November 1945, which shows that the plaintiff had been exercising her possession and dominion over this house. This is further supported by Exh. D. 1, a document produced by the defendant herself, which is a certified copy of the entries in form Register "A" of the Property Tax, for the year 1952‑53, in which she is shown as the owner and Ahmad Bakhah is shown as a tenant. Exhibit P. 2 is another rent deed executed by one Fazal Illahi on the 28th of August 1951, in favour of the plaintiff. Exhibit P. 4 is a mortgage deed which was executed by the plaintiff in favour of one Qadir Bakhsh on the 29th of April 1954. Froth this documentary evidence, which is of a period much Prior to the present litigation, it becomes quite clear that the plaintiff had been exercising proprietary and possessory rights over the house in question, anti the transaction seems to have been Completed in this way that Mst. Ume Kulsoom handed over her person in marriage in consideration for a dower amount of Rs. 522, which was paid to her by Haji Ghulam Muhammad, inter alia in the form of the conveyance of the house in dispute. Looked at from this point of view, Exh. P. 1 is nothing but a simple contract by which Haji Ghulam Muhammad agreed to transfer the properties mentioned therein if Mst. Ume Kulsoom married his son. There is nothing wrong With such an agreement and when both parties performed their part of the contract, Mst. Ume Kulsoom is entitled to the declaration that she is the owner of the house in dispute which was given to her in lieu of dower in consideration for her marrying Khuda Bakhsh. In N. Saiyed Sajjad Ali Khan v. Mst. Badshah Begum (A I R 1936 Oudh 385) which was a case of enforcing arrears of maintenance on the basis of an ante‑nuptial agreement, it was field with reference to Yawab Khawaja Muhammad Khan v. Nawab Husaini Begum ((1910) 37 1 A 152), Pran Mohan Day and others v. Hari Mohan Das and others (A I R 1925 Cal. 856) and Thirumula Subbu Chetti v. Arunachalam (A I R 1930 Mad. 382) by Srivastava, Ag. C. J. and Ziaul Hasan, J. that:‑

"As pointed out by their lordships of the Judicial Committee in the extract quoted above such agreements are frequently made in Mahomedan families in this part of the country between the parents and guardians of the parties to the marriage and it would occasion serious injustice if a person in the position of the plaintiff is not allowed to take advantage of the provisions of such an agreement on the ground of her not being a party to it.

Admittedly the agreement in question was an ante‑nuptial promise in consideration of the plaintiff's marriage with Qasim Ali Khan with whom the defendant was in loco parentis. It is well settled that such agreements became a binding contract when they are followed by the marriage, 52 Cal. 425. Similarly in 53 Mad. 270 a Full Bench of the Madras High Court recognized a marriage settlement as an exception to the rule against a stranger to the contract enforcing it. The defendant's argument on this point must therefore fail. The result therefore is that the appellant has failed to make out any ground for interference with the decision of the lower appellate Court. We accordingly dismiss the appeal with costs."

In Salliyal Kotakkat Mannakkal Narayannan Nambudirf v. Patticharavoor alias Charavoor Manakkal deceased Narayanan Namburdiripad daughter Unnirnayya Anthaijanam and another (A I R 1945 Mad. 165) it was held that, "a promise to pay a particular sum of money or to settle some property on a bride or bridegroom in consideration of her or his marrying the son or daughter of a promisor is not invalid and is not opposed to public policy." Similarly, in Muhammad Muin‑ud‑Din and another v. Jamal Fatima (A I R 1921 All. 152), Muhammad Ali Akbar v. Fatima Begum (A I R 1929 Lah.660) and Mst. Hamidan v. Muhammad Umar (A I R 1932 Lah.65) it was held that an agreement between the prospective wife and the husband and his father with the object of securing the wife against ill‑treatment and of ensuring her a suitable amount of maintenance in case such treatment is meted out to her is valid and can be enforced. In Ma E. Tin v. Ma Byaw and others (A I R 1928 Rang. 286 (2)) it was held that where a gift is promised in consideration of marriage, the promise will become a binding contract when the marriage takes place.

5. What has been stated above is sufficient to give a verdict in favour of the plaintiff, especially, when the factum of marriage and the execution of Exh. P. 1 in consideration thereof has not been disputed before me. Learned counsel for the defendant respondent however, tried to argue that since the parties convassed their rights in this case, also under the Muhammadan Law, therefore, the principles of general law as mentioned in the earlier paragraph should not be brought in. Arguing this 8 way he submitted that the validity of a gift has to be considered in two ways, namely, whether the transaction is permissible under the Muhammadan Law and whether the requirements of that law have been satisfied. He argued that looked at from that point of view, the transaction neither amounted to hiba simplicitor nor a hiba-bil-ewaz and that as there was no intention to make a gift of the house in praesenti and that in any case since it was a contingent gift the transaction had no legal effect. The first argument of the learned counsel that general principles of contract should not be brought into this matter has no force, because if from the very nature of transaction a relief be granted to the plaintiff under the general law it cannot be refused merely because some other points can also be debated in the case. Secondly, the plaint was not drafted in this case with any peculiarity to any particular feature of any of the principles of Muhammadan Law so as to exclude the possibility of the applicability of the general law. It was a simple suit to lay claim on the property on the basis of an agreement Exh. P. 1, and according to me the matter should not have been made complicated by entering into highly technical pleas of the kind which are now being raised by the learned counsel for the respondent. Anyhow, since the lower appellate Court brought in the concepts which are now being adopted by the learned counsel for the respondent, I proceed to deal with them hereinafter.

6. The subject of gift can be divided into four main heads, namely,

(1) Hiba pure and simple which is a transfer without consideration.

(2) True hiba-bil-ewaz.-The important features of this form are the following: (a) there are two mutual gifts, each party to the transaction is donor in one and donee in the other. There are thus two distinct acts, (i) the original gift and (ii) the iwiz or exchange. See Bailie's Digest of Muhammadan Law Book I, p.122, Muhammad Faiz Ahmad Khan v. Ghalim Ahmad Khan and others (1881) 3 All. 490 (P C); Kulsum Bibi v. Bashir Ahmad and others A I R 1937 All. 25; Sharif-ud-Din Muhammad v. Mohiuddin Muhammad and others A I R 1927 Cal. 808; Ashid Bai v. Hajf Muhammad Abdullah, etc. I L R 31 Bom. 271 Rahim Bakhsh v. Muhammad Hassan I L R 11 All. 1 at p. 5. The ewaz or return must be distinctly opposed to the prior gift by clearly expressing such position, but if this is not done, (e.g. the exchange is given without mentioning that it is an exchange), then it would be a fresh gift each party having a right to revoke it. Bailie's Digest of Mohammaden Law, Book I, p 541; (b) the consideration is not stipulated for beforehand. The consideration is strictly speaking, only an afterthought on the part of the donee who offers a return spontaneously. Bailie's Digest of Mohammaden Law, Volume I, p. 35. Also see Tayyabji, pp. 446 and 447; (c) this is not a mutual exchange or a contract of mooawzut either in its inception or completion as is the case with a false hiba-bll-ewaz Bailie, Vol. I, p. 543.

This form being really nothing but one of reciprocal gifts, both the gift and the return are subject to the same condition as gifts. See Bailie Book I, pp. 512 and 514; Hedaya, p. 488. Thus no writing or registration is necessary; see Abdul Hamid v. M. Abdul Ghani and others A I R 1934 Oudh 163; the delivery of possession is necessary; the doctrine of mushas applies; the transfer is not open to pre-emption; and neither party can reject anything given on either side on account of any defect. A true hiba-bil-ewaz is a gift both in its inception and completion and is governed by the Mohamroadan Law of gifts. It is distinguishable from a false hiba-bil-ewaz. in the sense that here the return, though reciprocal, is uncovenanted, while in false hiba-bil-ewaz, the return constitutes a consideration and covenant of gift.

(3) False hiba-bile ewaz.-In this case, the gift and the return are both part of a single agreement and the donor makes the gift only for the exchange. Such a transaction is really nothing but one sale and is only described (or rather misdescribed) as a hiba. It is, therefore, governed not by Mohammadan Law but Contract Act and the Transfer of Property Act and has all the incidents of a sale. It is a sale both in its inception and completion. This consists of a gift by a single act, the return being involved in the contract of gift as a direct consideration. This is really not a gift of two reciprocal gifts but is really a transfer for consideration with all the incidents of a sale. Thus writing or registration are necessary in certain cases but the delivery of possession is not necessary. See Hafiz Feroz-ud-Din v. Sardar Shah and others A I R 1924 Lah. 562; the doctrine of Musha'a does not apply; see Sahiba Begum v. Atchamma (1868) 4 M H C R 115; the transfer in some cases according to certain High Courts may be open to pre-emption; see Satyendra Nath Rai Chaudhury v. Fulsom Bibi and others A I R 1932 Cal. 625, Fida Ali and others v. Muzaffar Ali and others I L R 5 All. 65, Nathu and others v. Shadi I L R 37 All. 522 and Jainulabideen Marakayar and others v. Habibulla Sahib A I R 1928 Mad. 430=106 1 C 130. For Lahore view, see Durab Khan v. Mst. Sabyani P L D 1952 Lah. 421 and the transfer is irrevocable from the moment of its making. See Abirajan Beml-a v. Sh. Kabil 54 I C 542 and Mst. Lal Bibi v. Nawab Maasoom Ali 38 I C 794. A false hiba-bil-ewaz being nothing but one sale is governed by the general law as distinct from a true hiba-bil-ewaz which is governed by the Mohammaden Law of gifts.

(4) Hiba-ba-shartul-ewaz.-In this case, the donor makes a gift but on the express stipulation that it is being made on the condition of a return (e.g., "I have given you this on the condition of you are giving me such thing)". The legal operation of the gift depends on the fulfilment of the condition. The transaction is thus in the nature of an executory gift and the "grant" and "condition" are dependent upon each other. It is a gift in its inception and continues to have all the incidents of a gift till the condition is fulfilled. Delivery of possession is thus necessary and either party refuse to deliver possession. Till then the gift is revocable. It becomes a sale as soon as the condition is fulfilled and the return is given. See Rasool Bee and others v. Madari Mahaldar Ghulam Kasim 23 I C 802. It thus requires registration and is subject to pre‑emption. See Khodaijatul Kubra v. Kirishna Pershad and others A I R 1930 Pat. 530. It is a gift in its inception but a sale on its completion. It may be pointed out that a tendency has grown up among the litigants in calling a transaction as hiba‑nil‑ewaz without really discrimingting as to which type of hiba‑nil‑ewaz it is. If this distinction is strictly maintained, a lot of confusion which has cropped up even in case law can be avoided.

7. In order to determine as to which law should apply to the facts and the circumstances of any particular case, it is necessary to ascertain the real nature of the transaction involved. , A transaction, though by whatever nomenclature described may turn out to be a hiba pure and simple or a true hiba‑bil‑ewaz or a false hiba‑nil‑ewaz or a hiba‑ba‑shartul‑ewaz. Keeping in view the broad features of the main type of gifts mentioned above, if we scrutinise the transaction in hand, it turns out to be nothing but a transfer in lieu of dower or settlement on the girl in consideration of her offering herself for marriagt. Various High Courts have held that a transfer in lieu of dower is a hiba‑nil‑ewaz in the false form (which we also know as Indian form), and amounts to a sale. For Lahore view, see Gopaldass v. Sakina Bibi (A I R 1936 Lah. 307), Mst. Aimna v. Lakmichand and 'other (A I R 1934 Lah. 705), Mst. Umrao Bibi and others v. Muhammad Bakhsh and others (55 I C 236), Fateh Ali and others v. Mohd. Bakhsh and others (A I R 1933 Lah. 601=144 I C 45). For, Calcutta view, see Abbas Ali Shikdar v. Karim Bakhsh Vhikdar ((1909) 4 1 C 466), Satyendranath Rai Chaudhury v. Fulsom Bibi (A I R 1932 Cal. 625), Esahaq Chaudhry v. Abedunnessa Bibi (I L R 42 Cal. 361), Saburannessa v. Sabdu Sheikh and others (A I R 1934 Cal. 693). For Patna view, see Mohd. Unman Khan v. Amir Miun and others (A I R 1939 Pat. 237), Shaikh Mohd. Zobair v. Mst. Bibi Sahidan and others (A I R 1942 Pat. 210). For Madras view, see Mohd. Eusph Raman v. Pattamsa Ammal (I L R 23 Mad. 70), Jain‑ul‑Abidin Marakayar and others v. Habibullah Sahib and Masum Ali Sahib and others v. Illuri Modin Sahib (A I R 1952 Mad. 671). For Dacca view, see Dana Meah Choudhury and another v. Gagan Chandra and others (P L D 1955 Dacca 39). For Nagpur view, see Mst. Zainab Bi v. Jamal Khan and others (A I R 1951 Nag. 428). For Allahabid view, see Ghulam Abbas v. Mst. Razia Begum and others (A I R 1951 All. 86). The Calcutta High Court, in the case of Rustam Ali v. Abdul Jabbar and others (A I R 1923 Cal. 535) went even so far as to hold that where a property is transferred in lieu of dower and tae husband acquires title to the property subsequently, the wife acquires the title to the whole property. A distinction has, however, been drawn in some cases between an assignment of property to a wife as her dower and the transfer of property to her in payment of dower. In the former case, it is not a sale, while in the latter case it will tantamount to a sale. See Fida Ali etc. v. Muzafar Ali etc. (I L R 5 All. 65) and Abbas Ali Shikdar v. Karim Bakhsh Shikdar. It was further held in Mst. Gulbaro v. Akbar Khalid (A I R 1936 Pesh. 178) that in the former situation, the wife would be entitled to a decree for possession against the husband if he transfers the property as her dower. In Bailie's Digest of Muhammadan Law, Book I, p. 479, Book II, p. 177, and Hedaya, p. 559, it is stated that there is no right of pre‑emption where property is given as dower or as compensation for khula. Examining the transaction in hand in the light of the above literature, it will transpire that it is a transfer either in lieu of dower and thus amounts to a sale or is a transfer or settlement in consideration for marriage as was the case in Taj‑un‑Nisa Bibi Ammal v. Rehmat Bibi Ammal ((1959) 1 Mad. L J 221) and other case law already referred to. Perusing from the point of view of Muhammadan Law as well, the transaction amounted to a false hiba‑bil‑ewaz, and tantamount to a sale. In these circumstances, it cannot be attacked on the grounds on which the learned counsel wanted to assail it, nor are these grounds in fact available because here both parties performed their part of the contract and a valid transfer duly came into existence long ago, which it is too late in the day to challege now.

8. The upshot of the above discussion is that this appeal must succeed and the suit of the plaintiff is decreed. There will be no order as to costs throughout.

9. The appeal was accepted by means of a short order, dated the 20th of December 1967, for the reasons to be recorded later. The present judgment constitutes the reasons for that order.

A.E. Appeal accepted.

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