P L D 1964 Dacca 451 (PLP)

8. These two contentions call for determination of the nature of the transaction styled as hiba‑bibewaz in the deed Exh.

2. Under the Muhammadan Law, hiba‑bil‑ewaz is one form of hiba which literally means gift. A gift may be a hiba simple or a hiba‑bil‑ewaz or a hiba‑ba‑shartubewaz. The Hedaya, defines gift thus : " Hiba in its literal sense, signifies the donation of a thing from which the donee may derive a benefit‑in the language of the law it means a transfer of property made immediately and without any exchange" (See the quotation from Hamilton's Hedaya appearing on pages 6, 7 of the case' reported in I L R 11 All. 1). To the same effect is the meaning assigned to hiba by Baillie according to whom "gift, as it is defined in law, is the conferring of a right of property without an exchange" (See Baillie's Digest of Muhammadan law First part‑page 515).

9. A hiba‑bil‑ewaz, according to the conception of Muhammadan law, consists of two separate acts of donation i.e. reciprocal gifts of specific properties between two persons, each of whom is alternately the doner of one gift and the donee of the other. This form of hiba has been more elaborately explained in section 406 of Tayabji's Principles of Muhammadani Law. Third Edition which runs thus :

406. After a gift (in this context called the primary gift) has been made and completed, the donee may offer to make a reciprocal gift, i.e., a gift from himself to the person who made the primary gift. If with the offer of such a reciprocal gift it is signified that it is made by the primary donee in return for the primary gift to himself, then the reciprocal gift is called the ewaz or return for the primary gift. If the second (reciprocal) gift is accepted as a return or ewaz for the primary gift and completed, the whole transaction (con sisting of the primary and reciprocal gifts) is called hiba‑bil‑ewaz (or gift with return").

10. The giving of ewaz or return in this form of hiba proceeds voluntarily from the donee of the gift and is an after‑thought. In other words, the donee voluntarily offers the ewaz or return to the doner only after the primary gift has been made and com pleted. This means that there is a time‑lag between the primary gift and the return gift, however, short its duration may be.

11. Hiba‑ba‑shartul‑ewaz is a gift made with a stipulation for return. In this form of hiba too, there are two separate acts of donation, but the main distinction between hiba‑bil‑ewaz and hiba‑ba‑shartul‑ewaz is that in the former the ewaz is voluntarily offered by the donee after the completion of primary gift, while in the latter the ewaz is expressly stipulated for between C the parties at the time of the primary gift.

12. In order to be valid, every form of hiba under the Muhammadan Law, whether it is a hiba‑simple, a hiba‑bibewaz or a hiba‑ba‑shartul‑ewaz, must contain the following essential elements, namely :‑ (i) A declaration by the doner intending to transfer in present to the donee the subject‑matter of the gift. (ii) Acceptance of the gift by or on behalf of the donee. (iii) Delivery of possession of the subject‑matter of the gift by the doner to the donee. Acceptance of the gift may be express or implied, and delivery of possession may be actual or constructive according to the circumstances of the case, but no transaction which does not contain the above essential elements can be treated as a hiba or a variation thereof under the Muhammadan Law.

13. Let us now examine the deed Exh. 2 so as to ascertain if the transaction styled therein as hiba‑bil‑ewaz is really so under the Muhammadan Law. The pertinent provision of the deed runs thus :‑ Translated into English it reads like this :‑ "Having received from you today one copy of the Holy Quran, one prayer carpet and one rosary, I execute this deed of hiba‑bil‑ewaz and thereby admit and agree that from today you are the full owner in my place and that you and your successors‑in‑interest are entitled to possess and enjoy (the land mentioned in the deed after mutating your name in the landlord's office and paying rent) therefore with right to gift and sell (that land)".

14. Obviously, the transaction as per deed Exh. 2 is neither a hiba simple, nor a hiba‑ba‑shartul‑ewaz. For the reasons stated below, the said transaction is not a true hiba‑bil‑ewaz either. A true hiba‑bil‑ewaz under the Muhammadan Law, as already said consists of two reciprocal gifts one primary gift and the other return‑gift. The return‑gift is an ewaz not stipulated for at the time of the primary gift and is voluntarily made by the donee of the primary gift only after the primary gift has been made and completed. This, however, is not true in the present case. In the questioned hiba‑bibewaz, the ewaz itself is involved as its direct consideration for which reason it constitutes only one transaction that is a single transfer for a consideration, but does not involve two reciprocal gifts with a time‑lag between them, as in the case of a true hiba‑bil‑ewaz under the Muhammadan Law. Here, the ewaz (one copy of the Holy Quran etc.) was not given voluntarily by one party to the other ; the same was given as a consideration of the gift. Moreover, the said ewaz was received by the doner either before or at the time of the gift but not after the gift had been made and completed. In the opinion of eminent jurists and Judges, transaction of this nature, though termed as hiba‑bil‑ewaz, is not a true hiba‑bil‑ewaz, as conceived in Muhammadan Law, but a sale. A gift for a consideration like the questioned hiba‑bil‑ewaz appeared to have been devised by Muslim lawyers with a view to evading difficulties in the way of gift of Musha i.e. an undivided share in property. This finds support from the following quotation from Baillie's Digest "But if exchange is in the original transaction, as when one thing is given in exchange for another, there is a sale from the beginning, as sale may b e contracted by the word `give' as well as by the word `sell'. And the transaction, which is termed hiba‑bil‑ewaz, has thus become a device in India for giving effect to the gift of mooshaa in a thing susceptible of partition, which may be lawfully sold, though it cannot be made the subject of gift". (Baillie's Digest First Part, Introductory page XXXVI);. The same matter has been further explained in Baillie's Digest First Part, page 122‑123 as follows "Heba‑bibewaz means, literally, gift for an exchange ; and it is of two kinds, according as the ewaz, exchange, is, or is not, stipulated for at the time of the gift. In both kinds there are two distinct acts first, the original gift, and second, the ewaz, or exchange. But in the heba‑bil‑ewaz of India, there is only one act, the ewaz, or exchange, being involved in the contract of gift as its direct consideration. And all are agreed that if a person should say, "I have given this to thee for so much", it would be a sale ; for the defini tion of sale is an exchange of property, for property and the exchange may be effected by the word `give' as well as by the word `sell'. The transaction which goes by the name of Heba‑bil‑ewaz in India Is, therefore, in reality not a proper heba‑bil‑ewaz of either kind but a sale ; and has all the incidents of the latter contract. Accordingly, possession is not required to complete the transfer of it, though absolutely necessary in gift, and, what is of great importance in India, an undivided share, in property capable of division may be lawfully transferred by it, though that cannot be done by either of the forms of the true heba bil‑ewaz".

15. In the case of Chaudhury Medhi Hasan and others v. Muhammad Hasan (33 I A 18), the Judicial Committee of the Privy Council observed "By the Muhammadan Law (by which the present case is governed) a holder of property may in his lifetime give away the whole or part of his property if he complies with certain forms but it is incumbent upon those who seek to set up such a transaction to show very clearly that those forms have been complied with. It may be deed of gift simply, or by deed of gift coupled with consideration. If the former, unless accompanied by delivery of the thing given, so far as it is capable of delivery, it is invalid. If the latter (in which case delivery of possession is not necessary), actual payment of the consideration must be proved, and the bona fade intention of the doner to divest himself in praesenti of the property and to confer it upon the donee, must also be proved; see Ranee Khujoorronissa v. Mst. Roushan Jehan". Delivery of possession of the subject‑matter of a gift as already said is one of the essential elements of a hiba‑bil‑ewaz under the Muhammadan Law. As delivery of possession, according to the above‑quoted observation of the Judicial Committee, is not necessary in the case of a gift for a consideration, the implication is that such a transaction is in the nature of a sale.

16. In the case of Hitendra Singh and others v. Maharaja of Darbhanga (551 A 197), his Lordship Ameer Ali, J. in delivering the judgment of the Judicial Committee of the Privy Council observed "Under the Muhammadan Law a transfer by way of hiba bil‑ewaz is treated as a sale and not as a gift".

17. To the same effect is the following observation of Sir George Rankin made in the judgment of the Privy Council in the case of Mahabir Prasad and another v. Syed Mustafa Hussain and others (AIR 1937 P C 174). "Whether or not it was open to him in spite of death‑illness to make a gift to his wife of the whole of the estate in lieu of dower is a moot point (e.f. 2 All. 854, 13 C W N 160, 42 Cal.

361. Ameer Ali `Mohammadan Law' Edn, 4, Vol. 1/63 and Tayabji, Principles of Muhammadan Law' Edn, 2 p. 814, differ in their views) ; such a transaction as the cases show, has been treated as a sale ; in which view, however a registered instrument would be necessary". Reference may also be mide to the decisions in the case of Sarifuddin v. Mohiuddin (I L R 54 Cal. 784) ; Saburannessa v. Sabdu Sheikh (38 C W N 747) and Fareh Ali v. Muhammad Baksh (I L R 9 Lah. 428) which support the view that a hiba‑bil‑ewaz for a consideration is in reality a sale and has all the incidents relating to sales.

18. The clear distinction between a hiba‑bil‑ewaz for a consideration and a true hiba‑bil‑ewaz under the Muhammadan Law, as pointed out earlier, is to be borne in mind in determining the real character of such transactions. In view of the distinction between them, hiba‑bil‑ewaz for a consideration is to be treated as a sale and is governed by the general law relating to transfer of property and not by the rules of Muhammadan Law relating to hiba. Accordingly, delivery of possession of the subject matter of such a hiba‑bil‑ewaz is not necessary to complete the transfer ; what however are necessary to make the transaction valid are an actual payment of the consideration on the part of the donee, and a bona fide intention on the part of the done to divest himself in praesenti of the property and to confer upon the donee. It is immaterial if the consideration is inadequate or of notional value. Suffice it to refer to the decisions in Ranee Khajooroonissa v. Mst. Roushan Jehan (3 I A 291 P C) and Abbas Ali v. Karim Baksh (12 C W N 160) in support of this view.

19. Tested by the above principles of law the questioned deed of hiba‑bil‑ewaz. (Exh. 2), in my opinion, constitutes a sale and not a true hiba‑bil‑ewaz under the Muhammadan Law. The recitals in the deed sufficiently prove the actual payment of the consideration by the donee Asia Khatoon and the intention on the part of the doner Suruj Banu to divest herself immediately of the property and to confer it upon the donee. Thus, the transaction constituted a complete sale of the land of C. S. Plot 1237/1486 whether or not possession of that land was delivered to the transferee Asia Khatun. As regards possession, both the Courts below, however, found on satisfactory evidence that Asia got possession of that land and the same was actually possessed by her mortgagee Jubed Ali and that the plaintiffs also maintained their possession in respect of the suit land till their dispossession by the defendants. This disposes of the appellant's first contention.

20. In the deed of mortgage, dated the 30th December 1953, (Exh. 4) Asia Khatun, the executant thereof was represented as minor. This deed being subsequent to the deed of hiba‑bil ewaz (Exh. 2), she was necessarily a minor at the time of execution of the deed of hiba‑bil‑ewaz in her favour. Asia's minority at that time is no more disputed by the plaintiffs, rather they, in paragraph 4 of the plaint, admitted the then minority of Asia. As; however, the transaction styled as hiba bil‑ewaz constitutes a sale, the contention made on behalf of the appellant that Asia, on account of her minority, was incompetent to make return‑gift does not arise. This disposes of the second contention made on behalf of the appellant.

21. A further contention feebly made on behalf of the appellant is that even if the transaction as per deed of hiba bil‑ewaz (Exh. 2) is treated as a sale, the same is invalid for the reason that the transferee Asia, on account of her minority, was not competent to enter into a contract of sale and pay the consideration. A similar question raised in the case of A. T. Raghava Chariar v. O. M. Srinivasa Raghava Chariar (I L R 40 Mad. 308), was fully considered by the Full Bench of the Madras High Court. After taking into consideration all the relevant provisions of the Contract Act and the Transfer of Property Act, the Full Bench of the said High Court held that though a minor cannot make a transfer, he is not debarred from becoming a transferee, if he had prepaid the consideration and has no personal obligation to discharge in respect of the transfer. This view does not appear to have been dissented from so far and should be accepted as correctly stating the legal position with regard to a minor's capacity to become a transferee. In the present case, Asia, though a minor at the time of the hiba‑bil ewaz in question, gave the consideration of that transaction to the transferor, Suruj Banu and had no legal obligation whatever to discharge. Therefore, the transfer in favour of Asia as per deed of hiba‑bil‑ewaz (Exh. 2) was valid in spite of her minority at the time of that transfer. In the result, the appeal fails and is dismissed with costs. The judgment and the decree of the lower appellate Court are affirmed. s. Q./x. B. A. Appeal dismissed.