P L D 1955 Dacca 39 (PLP)

P. C. Pakrashi and Syed A. B. Mahmud Hussain, Assistant Government Pleader for

1. H. Chowdhury, for Respondents. M. Fazlul Huq, for Deputy Registrar representing minor Respondents. IBRAHIM J.--‑There are two plaintiffs in this suit, and they are the appellants. Plaintiff No. 1 is the husband of plaintiff No.

2. Plaintiff No. 1 was the owner of 10 as share in an etmam which he and his co‑sharers held under defendants Nos. 3 to

10. On the 6th of January, 1937, plaintiff No. 1 made a gift of this property which comprises his homestead to plaintiff No. 2 in lieu of her dower and maintenance assessed at Rs. 1,

500. On the 8th of May, 1942, the etmam was purchasers by defendant No. 2 at a sale in execution of a decree for arrear rent obtained by 'defendants Nos. 4 to 10 in Rent Suit No. 211 of 1940. On the 9th of June, 1942, defendant No. 1 purchased the etmam at another sale in execution of another decree for arrear rent obtained by defendant No. 3 in Rent Suit No. 1237 of 1938. To these suits plaintiff No.1 was a party but not plaintiff No.

2. The present suit is for a declaration that the plaintiffs are not bound by the aforesaid sales inasmuch as plaintiff No. 2 was not a party to the suit and the sale proceedings, and plaintiff No. 1, though impleaded, was sued in his personal capacity and not in his capacity as mutwalli, in which character he figures in‑this suit, on the allegation that on the 11th of February, 1940, plaintiff No. 2 made a wakf of the interest transferred to her and appointed him as the mutwalli. The main defence as taken in the written statement was that Exh. 3, the deed of gift, was not acted upon, and as such, plaintiff No. 2 and plaintiff No. 1 as the alleged mutwalli, had no interest in the property and were not necessary parties to the suit. At the time of argument an additional defence was for the first time taken. It was argued that the etmam was a patni tenure and consequently the transfer by Exh. 3 was not binding upon the landlord and the latter was not bound to make plaintiff‑No. 2.a party. This argument was advanced on the strength of three documents‑Exh. 3, the deed of gift, Exh. A, the deed of gift executed by Kulla Mia, one of the co‑sharer tenants, on the 17th of February, 1937, and Exh. B, a Kabala executed by Korban Ali, one of the original tenants; on the 14th of November, 1926. In the description of 'the tenancy in these documents it is stated as . . . . . which literally means subject to the astan sale under Regulation VIII of 1819. The settlement khatan Exh. 11, however, records it as a permanent tenure liable to enhancement of rent. The learned Munsif allowed this new point to be raised but decided both the questions against the defendants. The learned Additional District judge has reversed his findings on both the points. The learned Munsif, in allowing the new point to be raised at the time of the argument, adopted an extraordinary procedure to the extreme prejudice of the plaintiffs. Al patni taluk is a tenure having distinctive incidents. A mere use of the words "panti taluk" does not make the tenure a patni unless the terms of the settlement make it so. Vide Raja Nirod Chandra Singha Sarma and others v. Harihar Chakravarti Chowdhury and others (32 C L G 19). The three documents, on the basis of which the argument was advanced, were no conclusive evidence that it was a patni. The tenure is not described in the documents as a patni tenure ; what is stated only is that it was liable to be sold under the Patni Regulation. True, the statement in Exh. 3 may be construed as an admission of the plaintiffs ; but this admission is no conclusive evidence, and the plaintiffs had no opportunity to offer an explanation as they would have had if the attack had been made in the written statement at the initial stage. The question could not, therefore, be decided without further investigation of facts. When such is the position it is not permissible to raise new points at the time of the argument. It is, however, contended by Mr. Pakrashi for the respondents that I cannot interfere with the decision of the learned Additional District judge as the plaintiffs did not ask for a remand in the Court of appeal below. The simple answer to this is that the plaintiffs were not interested in asking for a remand in the lower appellate Court ; they were interested in having the appeal dismissed. The learned Additional District judge has missed the fact that a mere statement that the tenure is liable to be sold under Regulation VIII of 1819 is no conclusive evidence that the tenure is a patni. He has overlooked the provisions of Regulation 1 of 1820 which extends the operation of patni sale procedure to some tenures other than patni. A bare statement, therefore, that a tenure is liable to be sold under that procedure, does not amount to an averment that it is a patni. He has also misconstrued the provisions of section 5 of Regulation VIII of 1819. This section lays down that the landlord cannot refuse to register and otherwise to give effect to alienation, but gives him a right to demand a fee as mentioned in clause (2) and a security as mentioned in clause (3) as a condition precedent to the registration. It does not cast any obligation on the transferor or transferee to give such fee or such security unless demanded ; it only gives the landlord the right to demand the same. It is open to the landlord to waive this right. At the time of the transfer in this case the landlord's fees were deposited in accordance with the provisions ‑of the Bengal Tenancy Act. There is no evidence that the landlord demanded any fee or any security, or that the plaintiffs refused to pay the same on any such demand : No such care was ever sought to be made out, and from the evidence, as it stands, it cannot be held that the transfer was not binding on the landlord for noncompliance with the provisions of section 5 of Regula tion VIII of 1819. This is an error of law and is sufficient to refute the argument advanced by Mr. Pakrashi that the finding of the learned Additional District judge cannot be assailed under section 100 of the Code of Civil Procedure. The original deed creating the etmam has not been produced. In fact, nobody thought of this point at the initial stage and no issue was joined on this question. No evidence was adduced as to what the terms of the settlement were. The settlement khatian records that the rent was liable to enhancement, whereas the fixity of rent is one of the essential incidents of a patni tenure. The decision of the learned Additional District Judge that the transfer by Exh. 3 was not binding on the landlord cannot be upheld in these cirumstances. As to the other question, namely, whether Exh. 3 was acted upon, the decision of the learned Additional District Judge is vitiated by the fact that he misconceived the nature of this instrument. A gift in lieu of dower is, under the Muhammadan Law, not a hiba but a hiba‑bil‑ewaj. There are marked distinctions between the two. The three essentials of a hiba as mentioned in section 149 of Mulla's Muhammadan Law 13th Edition, are (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 gift by the donor to the donee. An hiba‑bil‑ewaj, as distinguished from a hiba, is a gift for a consideration. It is in reality a sale, and "has all the incidents of a contract for sale," as stated in section 168 of the said edition of Mulla's Muhammedan Law. Two conditions are essential to make it valid. One is the actual payment of the consideration by the donee and the other is the bona fide intention on the part of the donor to divest himself in presenti of the property. The title in the donee is established, if these are made out. Now, the learned Additional District Judge says in deciding this point. "Save and except the interested testimony of plaintiff No. 1 who is the husband of the plaintiff No. 2, there is no corroborative evidence to show that the plaintiff No. 2 had either accepted Exh. 3 or had ' obtained possession of the land covered by it. That being so, the learned Munsif's finding regarding the acquisition of a valid title by the plaintiff No. 2 cannot be supported." What the learned Additional District Judge has decided is that the title of plaintiff No. 2 was not made out inasmuch as there was no evidence of delivery of possession to or of the acceptance of the gift by her besides the testimony of plantiff No.

1. This decision would be quite right where the transaction is a hiba but it cannot be right where the transaction is a hiba‑bil‑ewaz. A gift in lieu of dower is a hiba‑bil‑ewaz and delivery of possession is not essential. Muhammed Esuph Ravutan v. Pattaamsa Ammal (I L R 23 Mad. 70) is a case where the gift was to the wife in lieu of dower ; but possession was not delivered to the wife. It was nevertheless held that it was a valid hiba‑bil‑ewaz. It is thus clear that the learned Additional District judge has decided the question without adverting to the consideration relevant to a hiba‑bil‑ewaz. This has been the result of his misconception that he was dealing whith a simple gift. The judgment and decree passed by the learned Additional District Judge are, therefore, set aside. But I think that he should re‑hear the appeal in the light of the observations herein made, and I remand the case accordingly. The appeal is allowed with costs. A. H. Appeal allowed