JUDGMENT S.J. Hyder, J.
1. This appeal is sought to be supported on two grounds. In the first place it has been pressed upon me that the oral gift relied upon by defendant-respondents 1 and 2 was in effect a sale as it had been made in lieu of dower debt. It was urged that the alleged gift being of property of a value of more than Rs. 100/- is required to be registered and could not be taken into consideration in view of Section 54, T. P. Act. and Section 49, Registration Act.
2. It is next submitted that the finding recorded by the court of appeal with regard to the alleged gift is perverse as it is not supported by any reliable evidence.
3. The facts of the case lie in a narrow ambit. One Kadir left behind five sons including the plaintiff-appellants Rashid and Majid. Hamid was the third son who died issuless leaving behind a widow Smt. Batulan, who was impleaded as defendant 1. Mukhtar and Umar were the remaining two sons of Kadir. Out of them Mukhtar has been implead-ed as defendant 3. Umar had died earlier and his two sons Izharul and Hakim are defendants 4 and 5, respectively. The second defendant in the suit was Smt. Sadiqa Bibi. Plaintiff-appellants allege that the house in dispute was ancestral property of the parties having been acquired by Kadir. It was disclosed in the statement of claim that Smt. Batulan had only 2/40 share in the house in dispute whereas the remaining 38/40 share in the same belonged to plaintiff-appellants and defendants 3 to 5. It was alleged that Smt. Batulan had transferred the entire house in dispute to Smt. Sadiqa Bibi by means of a sale deed dated Feb. 3, 1962 in spite of the fact that the executant of sale deed was only a fractional owner of the property. The relief sought by the plaintiffs was that 38/40 share in the house in dispute may be separated by metes and bounds and separate possession of the same may be awarded to them. It is evident from the relief as stated above that the plaintiffs claimed a decree for partition not only on their own behalf but also on behalf of defendant-respondents 3 to 5.
4. The suit was contested by Smt. Batulan and her transferee Smt. Sadiqa Bibi who filed a joint written statement. According to them the house in dispute belonged exclusively to Hamid son of Kadir in which her other brothers had no right, title or interest during the lifetime of Hamid. It was further stated that Hamid made an oral gift of the house in dispute in favour of Smt. Batulan during his lifetime and the said gift was accepted by the donee who entered in possession of the house. It was claimed that Smt. Batulan was the exclusive owner of the property and she was competent to transfer the same. They further stated that Smt. Sadiqa Bibi acquired title to the whole house by virtue of the sale deed executed in her favour of Smt. Batulan on Feb. 3, 1962, In the written statement it was also disclosed that the dower debt of Smt Batulan was to the tune of Rs. 1,000/-and she had relinquished the same in favour of her husband, Hamid.
5. Reversing the findings of the trial court the first court of appeal came to the conclusion that the house in dispute exclusively belonged to Hamid. It was further held that Hamid as the exclusive owner of the property made an oral gift of the house in favour of Smt. Batulan. In view of these findings the trial court came to the conclusion that Smt. Sadiqa Bibi acquired good title to the whole of the property purchased by her by means of the sale deed dated Feb. 3, 1962. The court of appeal accordingly reversed the decree of the trial court and dismissed the suit of the plaintiff-appellants.
6. In support of his first contention learned counsel relied upon a Division Bench case of the Calcutta High Court in Saburannessa v. Sobdhu Shaika, 38 Cal WN 747 : (AIR 1934 Cal 693), Mahabir Prasad v. Syed Mustafa Hussain, AIR 1937 PC 174 and Ghulam Abbas v. Razia Begum, AIR 1951 All 86 (FB).
7. Now it may be stated that the law is well settled that transfer of an immovable property worth more than Rupees 100/- cannot be made by Muslim husband to his wife by way of gift in lieu of dower debt which also exceeds Rs 100/-. Such a transaction is neither a gift nor combination of gifts which may be made orally; it is a sale which can only be effected by means of a registered instrument. This in fact is the rule laid down in the cases relied upon on behalf of the appellants.
8. It, however, appears in the instant case that parties were not alive to the above proposition of law. The question which has now been canvassed before this Court does not figure in the judgments of the two courts below. The question urged on behalf of the appellants, if it had been a pure question of law arising from the facts admitted and proved, can be permitted to be raised even before this Court even at the stage of second appeal.
9. It has to be remembered that a gift of property by husband in favour of his wife in lieu of her relinquishing the dower debt is a gift of the description known to Mohamadan lawyers as hiba-bil-iwaz. According to the original conception of hiba-bil-ivaz (gift for consideration) any gift in which the consideration was paid in praesenti or subsequently were included within the definition of the term. However, in India the term is applied only to such transfers in which consideration is paid as part of the same transaction. A subsequent transaction whereby the donee under the earlier gift makes some payment or relinquishment, as the case may be to the donor of that gift is not tacked to the earlier gift so as to bring it in the category of hiba-bil-ivaz. A transaction of this kind is considered in jurisprudence as two separate transactions or two different gifts. This is the sum and substance of the cases on which reliance has been placed on behalf of the appellant. The distinction between the earlier and the modern form of hiba-bil-ivaz is considered by the court in this country as important and must be borne in mind.
10. True it is that in the written statement filed on behalf of Smt. Batulan and Smt. Sadiqa Bibi two statements have been made. It is first disclosed that Hamid made a gift of the house in dispute to Smt. Batulan. The other is that Smt. Batulan relinquished her claim to the dower debt. The averments in the written statement cannot be construed to mean that relinquishment of the dower debt was a consideration for the gift made in her favour by her husband or that the two acts were part of the same transaction. No effort has been made on behalf of the appellants to clarify the nature of the transaction by cross-examining the witnesses in order to establish that, it was hiba-bil-iwaz in the modern sense as applied by the Indian Courts. I am, therefore, unable to accept the submission of the learned counsel and find no material on record to come to the conclusion that Hamid gifted the property in dispute in favour of Smt. Batulan in lieu of her relinquishing the dower debt. The cases on which reliance has been placed on behalf of the appellants are therefore clearly distinguishable and do not lend any assistance to the submission of the learned counsel.
11. The second submission urged in support of this second appeal is based on the inconsistencies in the statements of the plaintiffs' witnesses about the date of gift allegedly made by Hamid in favour of Smt. Batulan. The Court of appeal below has noticed the said inconsistencies and has observed that the said contradictions were not material as in its view, the witnesses were likely to err in stating about the exact time of the gift. Learned counsel urged that the inconsistencies in the statements of the witnesses were material and should not have been ignored by the Court below. I have given due consideration to the submission made by the learned counsel but I am unable to accept the argument advanced by him. The last Court of facts has assessed the evidence and has come to the conclusion that the oral gift relied upon by the contesting defendant-respondents 1 and 2, had been established, It is not open for me to reassess the evidence and to arrive, at a different conclusion. The assessment of evidence made by the last Court of facts cannot be characterised as unreasonable and perverse.
12. No other point has been urged in support of this second appeal. In view of what has been stated above I find no force in this second appeal which is accordingly dismissed. There shall however, be no order as to costs.