P L D 1952 Lahore 421 (PLP)

RAHMAN, J,‑The only question that false for‑determina tion in this regular second appeal is whether a transfer made by a husband, of his immovable property, in lieu of dower, to his wife, amounts to a sale subject to a right of pre‑emption. The question has arisen in the following circumstances. Nur Khan got a mutation entered in favour of his wife, on the 30th June, 1947, of 1256 kanals 13 marlas of his land situate in village Dhurnal, Tehsil Fatehjang, District Campbell pur, and he described the transaction as a gift to his wife, in lieu of her dower. The mutation was sanctioned, apparently after Nur Khan died. In the original report made to the Pat wari, there was not mention of the amount of dower. Later on, however, a son of the deceased appears to have presented him self before the mutation officer and he stated that the dower debt was Rs. 5,

000. The land transferred was obviously of much higher value. According to the report of a local com missioner appointed by the trial Court, the market price of the land in question was about .Rs. 21705. Durab Khan, a grandson of Nur Khan from his predeceased son, Muhammad Nawaz, brought a suit for possession of this land by way of pre‑emption, on the 29th June, 1948. The Court of first instance as well as the lower appellate Court has held that the transfer was not a sale within the meaning of the Punjab Pre emption Act. The plaintiff's suit, therefore, stands dismissed, and he has come up in second appeal to this Court. Mr. Basbir Ahmed on behalf of the appellant has stre nuously contended before us that a transfer by a husband to his wife, of immovable property in order to extinguish a dower debt is nothing but a sale and, therefore, subject to all the incidents of a pre‑emptible sale. Such a transfer is known. as hiba‑bil‑iwaz in Muhammadan Law. Learned counsel has invi ted our attention to section 168 of Mulla's Muhammadan Law at page 155, 1950 Edition. The learned author has opined that a hiba‑bil‑iwaz as distinguished from a hiba or simple gift, is a gift for a consideration. It is in reality a sale according to him and has all the incidents of a contract of sale. He has further noted certain authorities of the High Courts of Calcutta, Lahore, Patna and Nagpur, wherein it has been held that if immovable property of the value of Rs. 100 and upwards is in volved in such a transaction, it must be effected by a registered instrument. He has further referred to certain authorities as favouring the view that as a sale it gives rise to a right of pre emption. Apparently on this point, however, there is conflict of opinion and some authorities to the contrary are also noticed by the learned author. The late Syed Amir ‑Ali in his standard work on Muhammadan Law, Vol. I 4th Edition, has expressed the cate gorical opinion that when a property is conveyed to a wife in discharge of a dower‑debt, there is a no right of pre‑emption. It would appear, therefore, that text book writers are not agreed as to the exact incidents of such a transaction. Learned counsel for the parties have drawn our attention to several authorities in which the matter has been directly or indirectly discussed. We proceed to examine them. The earliest authority quoted before us is Fida Ali v. Muzaffar Ali (1883) 5 All.

65. D. B. In that case it was held that a sale by a husband of his share of an undivided estate to his wife, in consideration of a certain sum which was due by him to her as 'dower, is a sale within the meaning of the Muhammadan Law of Pre‑emption and gives rise to a right of pre‑emption. The decision in this authority was, however,' based, on the provisions of Muslim Law under which the definition of sale is much wider than that contemplate by the Punjab Pre‑emption Act. Under the Muslim Law a transfer of property for property, is a sale and that could obviously include an exchange which is clearly outside the purview of the Punjab Pre‑emption Act. There is apparently no other direct authority on all fours with the present case in support of the contention raised on behalf of the appellant. Mr. Bashir Ahmad, however, cited Kishen Singh v. Jai Kishen Das 2 P R 1903 ; Ali Bakhsh v. Sobha Singh 23 P R 1906 ; Muhammad Zaki Khan v. Munnu Sahu A I R 1925 Oudh 407 ; Fateh Ali Shah v. Muhammad Bakhsh I L R (1928) 9 Lah. 428, D. B. ; Gopal Das v. Sakina Bibi A I R 1936 Lah. 307, and Bahawal v. Amir A I R 1939 Lah. 343, D. B. which is equivalent to I L R 20 Lahore 590 as lending direct support to his position. Out of these, in cases Nos. 1, 2, and 6 it was laid down that an assignment of an immovable property for a consideration consisting partly of cash and partly of other property, may be a sale and, therefore, subject to the right of pre‑emption. For instance, if part of the consideration is service rendered by the transferee, it was held that the price at which the pre‑emptor should be allowed to take the property could be assessed by determination of the market value of the property involved. In case No. 3 the real question decided was whether a valid title could be transferred by the husband to the wife in immovable property, assigned in lieu of dower, without a registered deed or not. Incidentally it was observed that such a transfer is a sale. In case No. 4, a Division Bench of this Court held that a hiba‑bil‑iwaz is tant amount to a sale and confers an absolute and heritable title on the. transferee. That was not a case of pre‑emption. In case No. 5, the question discussed was similar to the one that was considered in case No.

3. There was a transfer by a husband in favour of the wife in lieu of dower, the amount of which was not mentioned in the deed of transfer. The question arose whether the amount of dower or the value of the property .transferred, had to be determined in order to decide the ques tion whether the deed was compulsorily registerable or not. There was difference of opinion in that case between Addison and Agha Haider JJ. and it came up then before Monroe J. He agreed with Addison J. and held that the determining fac tor for the purpose in question was the value of the property transferred. It is interesting to note that Addison J. in his judgment clearly said that hiba‑bil‑iwaz is only tantamount to a sale and has also some of the incidents of a gift. In case No. 6 which is the latest authority of this Court, the proposi tion was affirmed that a transaction for a consideration not wholly cash, may be a sale for pre‑emption purposes and it would be a question of fact in each case whether or, not the transaction should be regarded as a sale within the meaning of the Pre‑emption Act. Ram Lal J. who wrote the judgment of the Bench in that case quoted from Sir Meredyth Plowden's judgment in Gul Muhammad Khan v. Khan Ahmad Shah 29 P R .1893 D. B That eminent judge made the following obser vations in that case :‑ "Without attempting to define sale or exchange, we enter tain no doubt that a permanent transfer of land in a village for a sum of money plus something that is not money, does not, merely because of such addition, of necessity, cease to be a sale within the meaning of the Act. If a transfer of land for Rs. 100 is a sale, we entertain no doubt that the parties to the transaction by agreeing that the price should be Rs. 100 and (for example) a brass Iota, could not alter the true character of the transaction, and exclude it from being the subject of a claim of pre‑emption. Otherwise, the whole law of pre‑emption in the Punjab as contained in the Title of the Laws Act might be reduced to a dead letter. We consider that whatever form the parties to the transaction may choose to give to it for their own purposes, or for the purposes of defeating a pre‑emptor's claims, the question remains open to the Courts to decide whether the particular transaction does or does not amount to a sale within the meaning of that‑ section, and that, in the case put, there could be no difficulty in deciding that it is." The case was decided under the Punjab Laws Act but as neither in that Act nor in the Punjab Pre‑emption Act with which we are concerned, the term `sale' is defined the observa tions are apt in the present case also. In that particular case the transfer purported to be for a consideration of Rs. 4,500 in money and one ghumaon of land in another village, worth Rs. 40 or Rs. 50 only, The learned judge held that the addition of one ghumaon of land .to the money consideration was made designedly merely in order to give the transaction which was in reality a safe, the colour of an exchange, for the purpose of defeating a claim to pre‑emption. The case itself was therefore distinguishable from the present one as here the bona fides of the transaction are clearly established. On the other hand, Mr. B. Z. Kaikaus on behalf of the respondent took his stand on the authorities reported as Mir Zaman Khan v. Mst. Ghulam Fatima 88 P R 1901 ; Ghulam Raza v. Sardar Khan; 86 P R 1902, D. B.; a decision in Civil Appeal No. 34 of 1897 decided on the 14th November, 1900, Bashir Ahmad v. Mst. Zubaida Khatun A I R 1926 Oudh 186 (2), D. B. and (Talib) Ali v. Kaniz Fatima Begum A I R 1927 Oudh 204, D. B. In the first case it was held by Reid J. that a transfer by a husband, of immovable property in lieu of dower to his wife; the value of the property involved being considerably in excess of the amount of dower due should not be regarded as a sale as it was to a great extent a gift. It was not subject to a right of pre‑emption according to the learned Judge. The same view had been taken by a D. B. of the Punjab Chief Court in Civil Appeal No. 34 of 1897. In case No. 2; however, the decision really was based on the law of limitation and the opinion about the nature of the transfer, therefore, amounted to an obiter dictum. In the two Oudh cases it was pointed out that a hiba‑bil‑iwaz is a com bination of two reciprocal gifts and, therefore, not a sale, strictly speaking. The definition of sale given in the Transfer of Property Act was pressed into service. It was observed that " price " in this context means money only. Reference may also be made to Nur Muhammad v. Allah Wasaya 16 P L R 1908 D. B., in which a view contrary to that taken in Gopal Das v. Sakina Bibi A I R 1936 Lah. 307 prevailed. It was laid down that a gift by a husband, of landed property in lieu of dower in favour of his wife is tantamount to a sale and consequently such a deed of gift does not require regist ration if the amount of dower is below Rs. 100 although the real value of the immovable property transferred may exceed that amount. In Allah Ditta v. Nazar Din A I R 1916 Lah. 155 a Full Bench of this Court referred with approval to the definitions of "sale" and "mortgage " as contained in the Transfer of Property Act. A consideration of these authorities leads us to the con clusion that a transfer of the character under discussion may have some incidents of a sale proper and, therefore, maybe described as tantamount to a sale for certain. purposes but the view seems to have been consistently adopted so far as this Court is concerned, that such a transaction is not subject to a right of pre‑emption as it involves an element of gift. As at present advised, we see no reason to depart from that view. Even the authorities cited on behalf of the appellant leave the questions, whether such a transaction should be regarded as a sale or not to be decided on the facts of each case. In the present case, we have no doubt that the transfer by the husband in favour of the wife, was not intended to be a sale simpliciter. The value of the property involved was consider ably higher than the dower debt mentioned by the son of the deceased, before the mutation officer. It is, therefore, obvious that an element of gift was involved in this case. We are, consequently, not prepared to disturb the concurrent findings of the Courts below that the transaction was not a sale such as would attract the provisions of the Punjab Pre‑emption Act. We, therefore, dismiss the appeal but in view of the difficult nature of the question involved we would leave the parties to bear their own costs in this Court. MUHAMMAD JAN, J.‑I agree with the judgment of my learned brother and would like to only add that, so far as I can see, a transfer of property by a Muslim husband to his wife in consideration of the whole or a part of tier dower is a hiba‑bil -iwaz which has all the advantages of a sale without the disadvantage of being pre‑emptible. This appeal must, therefore, fail. A. H. Appeal dismissed.