1999SCMR1171 (PLP)

SAIDUZZAMAN SIDDIQUI, J.‑‑‑We propose to dispose of the abovementioned direct Civil Appeal No.991 of 1995, C.P. No. 1019‑L of 1995 and C.P. No. 1020‑L of 1995 by a common judgment as all the 3 cases arise from the judgment of a learned Judge in Chambers of Lahore High Court dated 18‑5‑1995 and the parties as well as questions of law arising therein are also identical.

2. The relevant facts of the cases are that Bashhir Ali Shah son of Saadat Ali Shah (hereinafter to be referred as 'the deceased' only) died issueless on 12‑6‑1973 leaving behind a widow, Imtiaz Begum, a brother Muzafar Ali Shah and sister Shahar Bano. The deceased at the time of his death owned and possessed landed property comprising 105 Kanals, 8 Marlas situated in Chak No. 188/R8, Tehsil and District Faislabad, a plot of land measuring 7 Kanals, 2 Marla& and 38 sq, feet situated in Chak No.213/RB, Tehsil and District Faisalabad and an ' Ahatta' bearing Nos.682 and 683 measuring 9 Kanals and 2 Marlas situated in Chak No. 188/RB, Tehsil and District Faisalabad. On the death of the deceased, the estate belonging to him was mutated in favour of his widow, brother and sister in proportion of 1/4th, 1/2 and 1/4th respectively. The widow as well as the brother and sister of the deceased were dissatisfied with the distribution of the estate of the deceased as aforesaid and, therefore, in the first instance, they agitated against the mutation of the property by the revenue authority in the above manner in the hierarchy of revenue department and having failed to get and redress from there, they filed three separate civil suits to challenge the mutation of the properties of the deceased in the above proportion. In the civil suits filed by the brother and sister of the deceased, they challenged the status of Mst. Imtiaz Begum as the widow of the deceased and asserted that she was divorced by the deceased during his lifetime and accordingly, they claimed the entire estate of the deceased by way of inheritance. Mst. Imtiaz Begum, the widow of the deceased, on the other hand in her Civil Suit No.471/1 of 1979 claimed that she was entitled to the entire estate left behind by the deceased as the deceased during his life had agreed to transfer all his properties in her favour in lieu of her dower amount of Rs.1,50,000 under an agreement, dated 7‑6‑1993. All the three suits were consolidated by? the trial Court and by judgment and decree dated 19‑1‑1988 the suit filed by Mst. Imtiaz Begum, the widow of the deceased, was decreed while the 2 suits filed by the Brother and sister of the deceased respectively were dismissed. Aggrieved .by the decision of the trial Court, 3 separate first civil appeals were filed by the brother and sister of the deceased which were allowed by the Additional District Judge, Faisalabad, by judgment dated 22‑12‑1988, with the result suit filed by Mst. Imtiaz Begum (Suit No.471/1/79) was dismissed while the two suits filed by the brother and sister of the deceased (Suit No.27/1/78 and 304/1/79) were decreed. Against the judgment and decree of the first Appellate Court. R.S.A. No. 11 of 1989, C.R. 220 of 1989 and C.R. No.221 of 1989 were filed before the High Court which were allowed by the impugned judgment and as a consequence thereof, the judgment and decree passed by the First Appellate Court was set aside and that of the trial Court was restored giving rise to the abovementioned one direct civil appeals and two petitions for leave to appeal before this Court. It may be mentioned here that during proceedings of the case the widow, the brother and the sister of deceased died and now the parties are represented before this Court through their respective legal heirs.

3. The learned counsel for the appellants contended before us that the findings of fact arrived at by the First Appellate Court could not be interfered with by the learned Judge in Chambers in second appeal as the first Appellate Court was the final Court in so far the findings on questions of facts were concerned and these findings of facts were binding in second appeal. The learned counsel further contended that the document Exh.P/8 on the basis of which the widow of the deceased asserted her right to the entire estate, was found by the learned Judge only a mode of payment of the dower and, therefore, such an agreement could only be enforced through the Civil Court by filing a suit for specific performance. It is also contended by the learned counsel for the appellants that the learned Judge in Chambers failed to properly determine the effect of compromise Exh.D/10, on the rights claimed by Mst. Imtiaz Begum under the agreement Exh.P/8. It is contended by the learned counsel that if the learned Judge in Chambers would have properly considered the effect of document Exh.D/ 10, he would have reached the conclusion that the claim of dower of Mst. Imtiaz Begum stood finally settled by the document Exh.D/10 dated 13‑3‑1957 and as such there,' was no occasion for the deceased to have executed the agreement Exh.P/8 a few days before his death, agreeing to pay once again the dower debt which was discharged long before the execution of document Exh. P/8.

4. The learned counsel for the respondents on the other hand, supported the judgment of the High Court and contended that a Muslim male has unfettered right under the Muhammadan Law to agree to pay any amount by way of dower to his wife and transfer or agree to transfer his property in lieu thereof. Such an agreement by an adult Muslim male in favour of his wife has been recognized under the Muhammdan Law as a valid transaction creating legal rights in favour of wife. The learned counsel argued that such an agreement falls within the definition of Hiba‑bil‑Ewaz under the Muhammadan Law. Number of cases were cited at the bar in support of the above proposition and we would refer these cases at the appropriate stage while analysing the contention of the learned counsel for the parties in this behalf.

5. It is an admitted position in the case that prior to the execution of the document, Exh.P/8 there was litigation between the deceased and his widow Mst. Imtiaz Begum which culminated into a settlement as evidenced by Exh.D/19, dated 13‑3‑1975. On the basis of above document, the learned counsel for the appellants contended before us that in view of the settlement of the entire claim of dower and prospective right of inheritance in the estate of the deceased by settlement, Exh.D/10, dated 13‑3‑1957 recorded by the Court in the proceedings between the deceased and his wife Mst. Imtiaz Begum, no claim whatsoever of any kind was left which could form the subject‑matter of settlement between the deceased and his widow. The learned counsel for the appellants, accordingly, contended that document Exh.P/8 alleged to have been executed by the deceased, wherein it was provided that dower amount of the widow was increased to Rs.1.50.000 and in settlement of this increased amount of dower the deceased transferred all his estate in favour of the widow, was rightly treated as an illegal agreement between deceased and her widow by the First Appellate Court. In the alternative, the learned counsel for the appellants contended that even if it is accepted that the deceased executed the agreement Exh. P/8 in favour of his widow Mst. Imtiaz Begum, the transaction did not amount to Hiba‑bil‑Ewaz as no transfer of property in praesenti was made under the agreement by the deceased in favour of his wife. Distinguishing the judgments cited by the learned counsel for the respondent and also those referred in the impugned judgment,? the learned counsel for the appellants argued that in all those cases the transactions which were treated by the Courts as Hiba‑bil‑Ewaz, were entire in favour of the wife in praesenti, and not those transfers which were to take effect on a future date. The learned counsel, accordingly, argued that in the present case as there was no transfer of the landed property by the deceased in favour of his wife Mst. lmtiaz Begum in praesenti the transactions could not amount to Hiba‑bil‑Ewaz. The learned counsel went on to argue that as the agreement Exh. P/8 purported to transfer the properties of the deceased in favour of his wife either on the death to the deceased or divorced by the deceased, such an agreement was enforceable only by filing a suit in the Civil Court for specific performance of the agreement. The above contentions raised by the learned counsel for the appellants were noticed in the impugned judgment but they were not accepted as follows:‑‑ ??? "

11. The next question which arises is to the nature of the document Exh.P.8. According to the learned counsel for the respondents the document has no legal validity as it was not a gift since it did not purport t0 transfer any property in praesenti but its effectiveness was postponed till death of Syed Bakhtiar Ali, In this behalf learned counsel has referred Mst. Willayat Jan and another v. Muhammad Sharif and another (1985 SCMR 1131), Abdul Khaliq and others v. Lt. Fazal‑ur?-Rehman (1980 SCMR 1481), Chaudhry Mehdi Hassan and others v. Muhammad Hasan (1993 Indian Appeals 68), para. 126 of Mulla's Mahomedan Law at page 383 of Saksena's Muslim Law (Third Edition) and has explained that a transaction which does not purport to transfer any right in the property at the time of its execution can neither be considered to be a gift nor a family settlement.

12. This contention is again not well‑founded; the agreement Exh. P.8 is not a gift simplicitor but provided mode for the payment of deferred dower. It was thus not essential that there must have been any transfer of interest in property in praesenti. It is well‑settled that under. Hanfi Law a husband is entitled to fix any amount of dower either at the time of marriage or even subsequently and also provide for mode of it?s a payment. It also cannot be disputed that the payment of dower can be deferred till the dissolution of marriage either by divorce or death of husband. In the present case the agreement Exh.'P.8 not only, recites that the dower had been increased to Rs.1,50,000 but it also provides the mode of its payment Such agreements are legal, valid and binding in law. If any authority is needed reference may be made to Mst. Kaneez Bibi and another v. Sher Muhammad and others (PLD 1991‑SC 466), Haji Ajab Gul and others v. Rahim Gul and others (1991 SCMR? 2500), Khuda Bakhsh and others v. Mst. Khedeja Bibi (PLD 1968 Lahore 1001), Allah Jawai v. Allah Ditta (PLD 1975 Lahore 1399)." The above conclusion reached by the learned Judge in Chambers in the impugned judgment in our view does not suffer from any legal infirmity.

6. The first contention of the learned counsel for the appellants before us is that the finding of fact recorded by the First Appellate Court was binding on the learned Judge in Chambers in 2nd appeal as well as in the revisional jurisdiction and therefore, upsetting of that finding was not justified. The contention of the learned counsel does not appear to be correct. The learned first Appellate Court raised the finding of the trial Court with regard to the execution of document Exh.P/8 by the deceased in favour of Mst. Imtiaz Begum his wife, mainly on the consideration that the original dower of the widow fixed at the time of marriage was itself so fabulous that there was no occasion for its further enhancement by the deceased. The learned first Appellate Court was also much awayed by the fact that the widow in the first instance failed to disclose the original amount of dower fixed at the time of her marriage with the deceased and in any case after, the compromise dated 13‑3‑1957 (Exh. D/10) in the suit brought by Mst. Imtiaz Begum against the deceased in respect of the property situated in Samanabad, her entire claim of dower stood settled and this fact completely negated the claim of the widow for enhancement of the dower amount by the deceased. The learned First Appellate Court also came to the conclusion that the document Exh.P/8 through which the deceased had allegedly agreed to enhance the dower of Mst. Imtiaz Begum to Rs.1,50,000 was written within the close proximity of the death of the deceased and as such it appears that the document was obtained by the widow deceitfully while the deceased was lying on the death‑bed. In this connection, the learned first Appellate Court also observed that the execution of document Exh.P.8 was the result of collusion of the widow Imtiaz Begum with her counsel Mahboob Ahmad and P.W. Sh. Haneef who were known to her relative Muhammad Tufail. The learned first Appellate Court also came to the conclusion that the execution of document Exh.P.8 by the deceased was involuntary. The above findings recorded by the first Appellate Court with regard to the execution of document Exh.P.8 neither found support from the evidence on record nor it was in accordance with the pleadings of the parties and the issues raised before the trial Court. There was neither any issue in the suit nor the parties led any evidence before the trial Court to prove that the document Exh. P/8 was executed during Marz‑ul‑Mout. Similarly, the conclusion of first Appellate Court that the amount of dower initially fixed at the time of marriage of Mst. Imtiaz Begum with the deceased was so fabulous that there was no occasion for its increase by the deceased, is purely conjectural. In the same manner, we failed to understand how the claim of Mst. Imtiaz Begum that the deceased had agreed to increase her dower amount to Rs.1,50,000 at the time of settlement which was recorded through Exh. D/10 in 1957, could be negated if the deceased subsequently in 1973 while executing the agreement Exh. P/8 acknowledged such arrangement between him and his wife Mst. Imtiaz Begum. A finding on a question of fact arrived at by the First Appellate Court which is based on no evidence or is the result of conjectures or fallacious appraisal of evidence on record is not immune from scrutiny by the High Court in exercise of its power under section 100 or 115, C.P.C. The learned Judge in Chambers, therefore rightly reversed the findings of the first Appellate Court in so far the execution of the document Exh.P/8 was concerned. We are also I sorry to note that the observations made by the learned First Appellate Court with regard to the evidence of Mahboob Ahmad, Advocate who was examined in Court. were totally uncalled for.

7. Since the trial Court as well as the learned Judge in Chambers came to the conclusion that the document Exh.P/8 was executed voluntarily by the deceased and we are also of the view after going through the evidence on record that the said document was executed by the deceased voluntarily, therefore the only question which remains to be examined in the case is, whether the document Exh.P/8 had the effect of transferring the entire estate of the deceased to his widow Mst. Imtiaz Begum to examine the true nature and effect of the document Exh.P/8, under which Mst. Imtiaz Begum. To examine the true nature and effect of the document Exh.P/8, under which Mst. Imtiaz Begum claimed the entire estate of the deceased husband, it will be appropriate to reproduce here the relevant paragraphs of the document which read as follows:‑‑ ?

1. That the party of the second part i.e. Mst. Imtiaz Begum is legally wedded wife of the party of the first part and in 1957 dispute having arisen between the parties hereto on personal matters which were settled by accepting the demand of increase of the dower amount and hence as mutual settlement the party of the first part increased the dower amount to the tune of Rs.1,50,000 in favour of the party of the second part and it was also agreed that on demand by the party of the second part about the dower amount, the party of the first part would be bound to make the payment in cash or by the transfer of movable or immovable property in favour of the party of the second part.

2. That the party of the second part has now made the demand for the payment of the dower amount and as the party of the first part is not in a position to make the payment of the dower amount in cash and in order to meet the said demand the patty of the first part hereby agrees to transfer the movable and immovable property of the party of the first part in favour of the party of the second part on the following terms and conditions:‑‑ (i) That this agreement will be effective on the dissolution of marriage either by divorce or on the death of the party of the first part whichever occurs earlier. (ii) That this agreement shall supersede all the previous arrangements or agreements made between the party of the first part and the patty of the second part. (iii) That the patty of the first part hereby agrees to transfer his landed property measuring 105 Kanals, 8 Marlas consisting of Khasra Nos. Kilas Nos.4/7 (2‑9), 17 (81‑3), 18 (18‑9), garden, 19 (8‑9) garden, 21(5‑7), 22(8‑18), 15(8‑18), 9 (8‑13), 11 (5‑3), 12(8‑18), ‑13/2 (4‑9), 14(8‑18), 16(8‑18), 23(9‑2) in Square No.25, Khewat Nos. 116, 113, Khatuni Nos. 162, 164, 165. 166 and 167 situate in Mauza Maly Wala. Chak No. 188/RB, Tehsil and District Lyallpur and Plot No.24/25 measuring 7 Kanals, 2 Marlas 3 sq. ft. Mauza Ranjit Singh, Chak No.213, Tehsil and District Lyallpur, 1/2 share in House No.682/683, measuring 18 Marlas, 5 Sarsai situated in Mauza Male Wala, Chak No. 188/RB, Tehsil and District Lyallpur. That this plot is jointly owned by the patty of the first part and his brother Muzaffar Ali Shah and the share standing in the name of the party of the first part is hereby transferred to the party of the second part. (iv) That after the operation of this agreement, the patty of the second part would be entitled to get the mutation in her favour or would be and perform any effective steps to get the movable or immovable property transferred in her favour. (v) That the party of the second part would be entitled to sell or mortgage or dispose of the property mentioned above as and when she would deem fit to do so.

2. That the party of the second part in consequence of this agreement has agreed to the following conditions:‑‑ "(i) That out the landed property situated in Mauza Maly Wala. Chak No. 188/RB, Tehsil and District Lyallpur land measuring 2 Kanals on the road shall be reserved for the grave of the first party, for mosque and a dispensary and the second party would be bound to erect a mosque and a dispensary from her own pocket and second party would not make any claim whatsoever over this land which is reserved for the grave of first party, for mosque and a dispensary. (ii) That the party of the second part has also agreed to maintain, educate and make arrangements for marriage of Mst. Shazia Bakhtiar Ali, daughter of Syed Mehboob Ilahi who is the adopted daughter of the party of the first part. (iii) That in case the party of the second part would sell all the movable or immovable property and out of the sale proceed of the said property, the party of the second part would deposit a fixed amount of ks.50,000 (Rupees Fifty thousand only) in favour of Mst. Shazia for her education and maintenance." The abovequoted provisions of the document Exh.P/8 clearly indicated that the deceased at the time of entering into a settlement with his wife in respect of the dispute which arose in 1957, had accepted the demand of his wife for increase in the dower amount to the tune of Rs.1,50,000 which was payable on demand either in cash or by transfer of movable and immovable properties of the deceased. This document also shows that Mst. Imtiaz Begum had raised a demand for payment of her increased dower before execution of Exh.P/8 which the deceased was unable to meet and, therefore, he agreed to transfer the properties mentioned in para. 2 (iii) of the document to her which was to be effective on dissolution of her marriage with the deceased as a result of divorce or death of the deceased. This document further provided that any other agreement and arrangement entered into between the parties earlier in this regard shall stand superseded by this document. Mst. Imtiaz Begum in terms of para.2(iv) and (v) of the document was entitled to get her name mutated in respect of the properties of the deceased mentioned in para. 2(iii) of the document and to exercise all powers of sale, mortgage or disposal thereof in her discretion on the happening of event mentioned in para. 2(i) thereof. We are, therefore, of the view that although the acquisition of the title to the property mentioned in the document was to be completed in favour of Imtiaz Begum on pronouncement of a divorce by the deceased or the death of the deceased, there was no ambiguity in so far the intention of the deceased to transfer his properties in favour of the widow was concerned. Therefore, no sooner the deceased died, the title of Mst. Imtiaz Begum in respect of properties mentioned in the document came into full effect. The contention of the learned counsel for the appellants that since the transfer of the properties in favour of Mst. Imtiaz Begum by the deceased had not taken place on the execution of Exh.P/8 but was postponed to the happening of a specified event, the only course open to Mst. Imtiaz Begum on the death of deceased was to seek specific performance of the agreement (Exh. P/8) in her favour by filing appropriate proceedings before a competent Court of law has not impressed us. The learned counsel attempted to distinguish the case‑law relied by the learned Judge in Chambers in the impugned judgment as well those cited before us by the learned counsel for the respondents during the course of hearing of the above cases in line with his submission that since the transfer of the property mentioned in the document Exh. P/8 was not a transfer in praesenti, therefore, it did not fall within the definition of Hiba‑bil‑Ewaz. We will now examine the cases which have been referred by the learned Judge in Chambers in the impugned judgment as well as those cited at Bar before us at the hearing of the above appeals. The first case referred in this behalf is reported as Khuda Bakhsh v. Mst. Khudeja Bibi (PLD 1968 Lahore 1001). In the above‑cited case, Haji Ghulam Muhammad father of the husband of plaintiff (Mst. Ume Kalsum) by a deed dated 26‑3‑1932 registered on 4‑4‑1932 gave a house belonging to him to Mst. Ume Kalsum before her marriage in lieu of her dower. It appears that after the death of Haji Ghulam Muhammad, his daughter Mst. Khudeja filed a suit for partition of properties left behind by said Haji Ghulam Muhammad including the house which her father Ghulam Muhammad had given to Mat. Ume Kalsum at the time of her marriage in lieu of her dower and obtained a preliminary decree in that suit. Mat. Ume Kalsum thereafter filed a suit seeking declaration that the house in her possession was her exclusive property with which Mat. Khudija had no concern. The trial Court in the suit filed by Mat. Ume Kalsum held that the deed executed by deceased Ghulam Muhammad in favour of Mat. Ume Katsum amounted to ' Hiba‑bil‑Ewaz' and, therefore, transfer of possession of property was not necessary. On appeal, the District Judge held that the transaction was neither a gift pure and simple nor 'Hiba‑bil‑Ewaz'. It was held by the District Judge, as the first Appellate Court, that 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 also held by the first Appellate Court that at the time the transaction was entered into, it was without consideration. The findings of the first Appellate Court were challenged in regular second appeal before the High Court which was accepted and the findings of the first Appellate Court were reversed and that of trial Court restored. The learned Judge in Chambers (as he then was) in that case after exhaustively dealt with various kinds of Hiba under Muhammadan Law, held that transaction in that case in favour of Mat. Ume Kalsum was Hiba‑bil‑Ewaz which became effective as soon as Mat. Kalsum was married to the son of Ghulam Muhammad. As similar contention as is raised before us by the learned counsel for the appellant in the present cases that there was no transfer of property in praesenti, therefore, the transaction could not be held to be a Hiba‑bil‑Ewaz was repelled in that case as follows:‑‑

"

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 tile. 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 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 simpliciter nor a Hiba‑bil? Ewaz and that as there was no intention to make a gift of the house in preasenti 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.

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 a false Hiba‑bil‑Ewaz or a Hiba‑bil‑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 marriage. Various High Courts have held that a transfer in lieu of dower is a Hiba‑bil‑Ewaz in the false form (which we also know as Indian form), and amounts to sale. For Lahore view, see Gopaldass v. Sakina Bibi (AIR 1936 Lah. 307), Mst. Amina v. Lakmichand and others, (AIR 1934 Lah. 705) Mst. Umrao Bibi and another v. Muhammad Bakhsh and others, (55 IC 236), Faith Ali and others v. Muhammad Bakhsh and others, (AIR 1933 Lah. 601 = 144 IC 45) For Calcutta view, see Abbas Ali Shikdar v. Karim Bakhsh Shikdar, (1909 4 IC 466) Satyendranath Rai Cahudhry v. Fulsom Bibi, (AIR 1932 Cal. 625) Eshaq Chaudhry v. Abedunnessa Bibi, (ILR 42 Cal. 361) Saburannessa v. Sabdu Sheikh and others, (AIR .1934 Cal. 693) For Patna view, see Muhammad Usman Khan v. Amir Mian and others, (AIR 1939 Pat. 237) Sheikh Muhammad Zubair v. Mst. Bibi Sahidan and others, (AIR 1942 Pat. 210) For Madras view, see Muhammad Eusph Ravutan v. Pattasma Ammal, (ILR .23 Mad. 70) Jain‑ul‑Abidin Marakayar and others v. Habibullah Sahib and Masum Ali Sahib and others v. Iluriodin Sahib, (AIR 1952 Mad. 671) For Dacca view, see Dana Meah Chaudhry and another v. Gagan Chandra and others (PLD 1955 Dacca 39) For Nagpur view, see Mst. Zainab Bibi v. Jamal Khan and others (AIR 1951 Nag. 428) For Allahabad view, see Ghulam Abbas v. Mst. Razia Begum and others (AIR 1951 All. 86) The Calcutta High Court, in the case of Rustam Ali v. Abdul Jabbar and others (AIR 1923 Cal. 535) went even so far as to hold that where a property is transferred in lieu of dower and the 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 herein 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. Muzaffar Ali etc. (ILR 5 All. 65) and Abbas Ali Shikdar v. Karim Bakhsh Shikdar, it was further held in Mst. Gulbaro v. Akbar Khalid (AIR 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 the 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 Animal v. Rehmat Bibi Ahmal (1959) 1 Mad. LJ 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 challenge now. " The nature of a transaction in the form of Hiba‑bil‑Ewaz was also examined in some detail in the case of Allah Jawai v. Allah Ditta (PLD 1975 Lahore 1399). In this case, the appellant claimed transfer of the house in her favour in lieu of her dower and based her claim besides the oral evidence, on a recital contained in the last column of her Nikahnama exhibited in the case at P/1. The husband of the appellant disputed the claim. The trial Court found the transaction in the nature of Hiba‑bil‑Ewaz and decreed the suit but the findings of trial Court were reversed by the first Appellate Court. In second appeal, the learned Judge in Chambers (as he then was) relying on the case of Khuda Bakhsh v.. Mst. Khudija (supra) reversed the findings of the first Appellate Court and restored that of the trial Court with these observations:‑‑ "

8. Ordinarily in a transfer of immovable property by a Muslim husband to his wife in lieu of dower, there are two distinct gifts, one by each patty to the other. The husband transfers by gift the property while the wife makes the gifts of her right to recover dower‑‑‑in other words she makes a gift of the dower debt. The transaction is essentially Hiba?bil‑Ewaz. This being the ordinary rule, it needs to be observed that there might be some exceptions, as visualised in some cases, depending upon peculiar circumstances thereof.

9. The transaction in the present case is not at all complicated. There is evidence and it has been found as a fact that at the time of Nikah, the respondent transferred the house in dispute to the appellant in lieu of her dower which was fixed at Rs.1,

000. The value of the house as determined by the learned trial Court was Rs.5,000 but this would not show that the transaction, by virtue of the real value of the house, got converted into any other form than Hiba‑bil‑Ewaz. Rather the value of the house being different and more as compared to the amount of dower, would further confirm the assumption that the transaction was Hiba‑bil‑Ewaz, and it was not at all a sale. As already considered such a transfer by a Muslim husband in favour of his wife in lieu of her dower being essentially a gift was not required to be effected through a registered instrument. Therefore, while confirming the findings of fact by the learned trial Court, I set aside the finding of the learned first Appellate Court to the effect that the transaction in question is to be treated as We. If it is not sale, then the second as assumption of law made by the learned Judge that registered instrument was necessary to effectuate it is also not correct. It is further observed that the provisions contained in Chapter VII of the Transfer of Property Act which inter alia requiring making of a gift of immovable property only by registered instrument, do not apply to the present case which is of Hiba? bil‑Ewaz by a Muslim such gifts are excluded by virtue of section 129 which provides that nothing in Chapter VII shall be deemed to affect any rule of Muslim Law." In case of Murid Hussain v. Ghulam Hussain (PLD 1984 SC 392) this Court held that where a husband made gift of his property in favour of her fiance, shortly before his marriage and the gift was recorded in mutation as having been made in lieu of dower, and the marriage did take place, the transaction was in effect a Hiba‑bil‑Ewaz in which neither proof of delivery of possession nor acceptance of gift was necessary. The cases of Khuda Bakhsh v. Mst. Khudeja Bibi (supra) and Murid Hussain v. Ghulam Hussain (supra) were referred with approval by this Court in the case of Mat. Kaneez Bibi v. Sher Muhammad (PLD 1991 SC 466) wherein the dispute also related to a property gifted by the father of bridegroom to the bride at the time of marriage in lieu of her dower and the transaction was held to be a Hiba‑bil‑Ewaz. ? The questions relating to the validity of increase in the dower amount of a wife by her husband during subsistence of the marriage under Muhammadan Law, the manner of proof of such increase in the dower amount and the consequences arising out of such increase of dower came up for detailed examination in a case arising from an income‑tax reference before this Court, in the case of Aziz A. Sheikh v. Commissioner of Income‑tax (PLD 1989 SC 613). The following observations appearing at pages 620 to 623 of the report may be consideration before us:‑‑ "

14. Although the subject under discussion namely, the rules of evidence in proof of increase of dower by Muslim husband are available in several well‑known treaties on Muslim Law but none of the learned counsel had time enough to cite all of them. Learned counsel for the appellant has relied on the following observations in Syed Ameer Ali's work (Pakistan (Edition), 1965, Vol. 2, page 423:‑‑

Under the Islamic system there is no community of goods between husband and wife. She is absolute owner of her own property and of whatever the husband settles on her as dower. The terms of the settlement are agreed to before marriage, but when these have been omitted, they may be settled subsequently. The terms of the contract may be varied at any time during the continuance of the marriage by mutual consent. The wife has the power either to relinquish the whole dower‑debt, or make an abatement in her husband's favour; whilst the husband similarly, has the power of making additions to her settlement or dower. 'The amount of the dower, as already pointed out, is either settled by the contract of marriage or by custom, or, in the case of Tafwiz or Takhim, by a subsequent agreement between the parties, or by an order of the Judge, or arbitrators." (Underlining is ours).

15. He also relied on Muslim Law by Saksena, Third Edition, page

229. The passage reads as follows:‑‑

"It depends upon the parties to modify the amount of dower any time they like, and likewise an addition can be made to the dower which has already been settled at the marriage (Mst. Nashiban Bi v. Mst. Iqbal Begum 1935 Lah. 816), with the consent of the parties, and the parties would be bound by the subsequent contract (Karamunnisa v. Hussaini, 3 All. 266; Ibrahim Bhurawa v. Isa Rasul, 41 Bom. 5, 16); but his addition would be void, if the marriage is dissolved otherwise than by death and without consummation or valid retirement. The new contract for an addition to the dower is by a large fiction, considered as a part of the old marriage contract (Jahuran Bibi v. Sakina Bibi, 58 CLC 251). The onus of proving the voluntary nature of relinquishment of doer by the wife falls on him who sets up such a case (Sajjad Hussain v. Muhammad Sayed Hasan, 1934 All. 71). Thus the dower can be fixed at any time before or after the marriage and the husband can increase the amount of the dower at any time during the continuance of marriage For purposes of increasing the dower a declaration by the husband is quite sufficient under the Muslim Law (Chan Pir v. Fakar Shah, 194.0 Lah. 104)." (Underlining is ours).

16. A short passage from Hedaya (2nd Edition, Vol. 1, page 45) Commentary on the Muslim Law has also been relied upon:‑‑

"Case of an addition made to the dower after marriage.‑‑‑If a man makes any addition to the dower in favour of his wife subsequent to the contract, such addition is binding upon him:"

17. Section 4 in Chapter V (under the heading 'Dower' with sub‑heading only of 'Disputes regarding Dower') of the Baillie's Digest of Muslim Law, has also been referred. However, it is instructive to reproduce the whole of said section 4, as it relates to rules of evidence also. First: If the dispute is upon the fact whether a dower was assigned or not, the word of the husband is to be preferred; without any difficulty if the dispute has arisen previous to consummation, because a contract of marriage without specification of dower is common and probable. And though the dispute should have arisen after consummation, here also the word of the husband is to be preferred as supporting the original and redical conclusion of freedom from obligation until the contrary is proved. Further, there is no difficulty in assigning the preference to the husband's assertion if he fixes an amount of dower, however, trifling, down to a grain of rice, because here the probability is established, and the excess alleged being contrary to the probable conclusion and unknown must be supported by roof. If the difference between the parties is as to the amount or quality of the dower specified, here still the word of the husband is to be preferred. Whereas, if he acknowledges the dower claimed by his wife and alleges his delivery of it, but fails to adduce any proof of his assertion credit must in this case be given to the word and oath of the woman Where however, there has been an actual delivery of the dower, but the wife alleges that what was given was intended as a gift here again the word of the husband is to be preferred as he must necessaries be best acquainted with his own intention. Second: If the husband and wife should have retired together and the wife alleged that carnal intercourse took place between them, then if the case admits of proof on the part of the husband, as where the wife was a virgin at the time of the marriage, and asserts coition in the natural way, the decision is obvious. Where again, she was not a virgin at the time of the marriage, or alleges coition unnaturally, the husband's declaration on oath must be credited, because the original condition is an absence of coition, and he denies what she alleges, which, therefore, requires to be established by proof. Some doctors, however, are of opinion that her assertion upon oath must be received as supported by the natural conclusion to be drawn from a man and woman in good health retiring together when no obstruction to the carnal act is alleged. But the first doctrine is the most approved. Third: When the dower is instruction in a chapter of the Koran, or in a trade, and the wife alleges she has been taught something else, her world is to be preferred, for she is a denier of what he claims. Fourth: If a woman should adduce evidence to prove that her husband married her at two different times by two separate contracts, as founding a claim to two dowers, and he should insist that what she supposed to be two in contracts was merely a repetition of the one contract, her word is to be preferred, because appearances are in her favour. Whether he is liable for the two dowers is a question which has been answered in the affirmative, in reliance on the fact of there having been two separate acts of contract; but it has also been said that he is only liable for a dower and a half. The first opinion, however, is the most approved." (Underlining is ours).

18. Learned counsel for the appellant has also relied on Jahurdan Garib Khan and others v. Sakina Bibi and others (AIR 1934 Calcutta 210 at 212); Mt. Nasiban Bi and others v. Mt. lqbal Begum (AIR 1935 Lah. 816); and Chan Pir v. Fakar Shah (AIR 1940 Lah. 104 at 105). The other cases which have only been referred but not relied upon are:‑‑

"(1) Ibrahim Bura v. Isa Rasul (41 Bom. 5). (2) Sajjad Hussain v. Muhammad Sayed Hassan (1934 All. 71). (3) Mt. Rukiayia Begum v. Radha Kishan (AIR 1944 Allahabad 214). (4)? Mst. Allah Jawai v. Allah Ditta (PLD 1975 Lah. 1399) (Hiba‑bil?-Ewaz). (5) Mst. Tayyaba Khanam v. Chairman, Federal Land Commission 1984 SCMR 1110."

19. It would have been seen that an acknowledgement in any form including declaration by the husband with regard to increase of dower is, as held by the Lahore High Court in Chan Pir's case, 'quite sufficient' to prove the same under Muslim Law. Even when there is a dispute between the wife and husband what to talk of third party, according to Baillie: 'the word of the husband is to be preferred as he must necessarily be best acquainted with his own intention." The Lahore High Court has also, in the case of Mst. Nasiban Bi, dealt with the nature and real value of the increase in dower. It has held that among the Hanifis and Shiahs, the addition is not regarded in the light of a gift or Hiba, and does not, therefore, require delivery of seisin, at the time the addition is made, to render it valid. Further relying on Hedaya, it was held that an alteration in the terms of such a contract being a matter within the power of the parties, is like an addition to the price in sale and thus becomes incorporated with the original dower. The necessary corollary would be that all the consequences flowing from the original dower would flow from the increased dower. The Calcutta case of Jahurdan Garib Khan went a step further." In view of the foregoing discussion, we are of the view that there was ample evidence on record to establish that the deceased had increased the dower amount of his wife Mst. Imtiaz Begum to Rs.1,50,000 during subsistence of his marriage with her and that on her demand to pay the increased dower, the deceased executed the agreement Exh.P/8 agreeing to transfer the properties belonging to him mentioned therein in lieu of her dower debt. The transaction evidence by Exh. P/8, therefore, in view of the legal position explained in preceding paragraphs was a Hiba‑bil‑Ewaz and mere fact that the transfer of title to the property was postponed until the death of the deceased did not affect its nature and character. We accordingly find no reason to interfere with the judgment of the High Court. The appeal and the two petitions for leave to appeal are accordingly dismissed but in the circumstances of the case, we will make no order as to costs. H.B.T./N‑8/S ????????????????????????????????????????????????????????????? ??????????? Appeal/petitions dismissed.