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Petitioner: MST. KANCHANMALA VS Respondent: RENU MIAN
P L D 1960 Dacca 1015
P L D 1960 Dacca 1015
Before Hasan, J
Mst. KANCHANMALA‑Petitioner
versus
RENU MIAN AND ANOTHER‑Opposite‑Party
Civil Revision Case No. 1091 of 1959, decided on 27th April 1960.
Bengal Tenancy Act (VIII of 1885), S.26‑F‑Hiba‑bil‑iwaz partly for payment of money and partly for love, care and affection bestowed upon donor by donee‑Not hiba‑bil‑iwaz as contemplated by section.
The deed of gift by which A, the donor transferred his properties to K, his daughter, showed that K was living in her father's house with her husband at the request of her father A. It further showed that the donee K was the first child of the donor A and the donor was satisfied by the affection and care bestowed upon him by her. It further appeared that the donee gave Rs. 200.to the donor previously for his expenses to Mecca and that in consideration of the same and also being satisfied with the nursing and care of the donee, he gifted away the properties to her for her maintenance. On the question whether the gift made by A in favour of his daughter K was liable to be pre‑empted under section 26‑F of the Bengal Tenancy Act, 1885:
Held, that although section 26‑F of the Bengal Tenancy Act, 1885 empowers one or more co‑sharer tenants of a holding to pre‑empt a transfer by gift including hiba‑bil‑iwaz yet in the above case it was not a hiba-bil‑iwaz as contemplated under section 26‑F of the said Act. The donee, made a gift of Rs. 200 to her father the donor towards his passage expenses to Mecca without any consideration or iwaz. This was a gift pure and simple. Similarly, though in the deed of gift it was stated that the gift or "iwaz" was for consideration of Rs. 200 advanced to the donor by the donee and also for love and affection bestowed on him, it could not be said that this gift or exchange being involved in the contract of gift was its direct consideration. Love and affection cannot be measured in money and, as such, it was not possible to assess how much for love, care and affection was gifted away and how much for Rs. 200. The gift in question, therefore, was not wholly for consideration and was not a hiba b1l‑iwaz as contemplated by section 26‑F of the Bengal Tenancy Act, 1885 and, as such, it could not be pre‑empted.
Abdus Salam and Abdul Wadud Miah for Petitioner. B. C. Das with Md. Behtar All for Opposite‑Party No. 2. Md. Yakub Hossain for the Deputy Registrar.
JUDGMENT
This case involves a nice question of law which will be apparent from the facts stated below.
2. One Ali Akbar gifted away some of the properties in suit along with other properties to his son Ann Mia (father of opposite party No. 1) and another son Abdu Mia (opposite party No. 2) by executing two hiba‑bil‑iwaz on the 1st of January 1957. Thereafter Anu Mia made a gift of some land of his gifted properties to his son Renu Mia (opposite party No. 1) on the 29th of August 1957. The said Ali Akbar then gifted away some of his properties, the subject‑matter of the present litigation, to his daughter Mst. Kanchanmala (petitioner) by executing a hiba‑bil‑iwaz on the 7th of Baisakh, 1364 B.S., corresponding to 20th of April 1957. It has been alleged by the opposite parties; the pre- emptors in a proceeding under section 26‑F of the Bengal Tenancy Act, that no notice of the gift by Ali Akbar in favour of his daughter was given to them and that subsequently, when they came to know of the same, they filed an application on the 8th of January 1959, for pre‑emption claiming to be co‑sharers of the holding. The trial Court dismissed the said application but, on appeal by the applicants under section 26‑F of the Bengal Tenancy Act, the lower Appellate Court allowed the appeal, set aside the judgment and order of the learned Munsif and granted the applicants' prayer for pre‑emption. Hence the present Rule.
3. In the aforesaid set of facts, it is contended by the learned Advocate for the petitioner that the opposite parties are not entitled to pre‑empt the properties gifted away‑by Ali Akbar to his daughter, the petitioner. Section 26‑F of the Bengal Tenancy Act empowers one or more co‑sharer‑tenants of a holding to pre- empt a transfer by gift including hiba‑bil‑iwaz but excluding hiba. So, in the present case, the question boils down to this : whether the gift made by Ali Akbar in favour: of his daughter (petitioner before me) is liable to be pre‑empted under section 26‑F of the Bengal Tenancy Act. The deed of gift by which Ali Akbar transferred the properties in dispute to his daughter has been marked as Exh. 1 in this case. The recital in Exh. 1 goes to, show that petitioner Kanchanmala was living in her father's house with her. husband at the request of her father Ali Akbar. It further shows that the donee (Kanchanmala) is the first child of the donor (Ali Akbar.) and the donor was satisfied by the affection and care bestowed upon him by her. It‑ further appears that the donee gave Ids. 200 to the donor previously for his expenses to Mecca and that in consideration‑ of the same and also being satisfied with the nursing and care of the donee, he gifted away the properties in dispute to her for her maintenance. This goes to show that the gift by Ali Akbar in favour of his daughter was for ‑consideration of Rs. 200 and also for the love, affection and care bestowed upon him by her.
4. It is contended on behalf of the petitioner that though this hiba‑bil‑iwaz is partly for a consideration of Rs. 200, yet it is not a hiba‑bil‑iwaz which can be pre‑empted under section 26‑F of the Tenancy Act. It is further contended that this hiba‑bil‑iwaz is of a composite character, namely, it is partly for payment of Rs. 200 and partly for love; care and affection bestowed upon the donor by the donee and, as such, it is not possible to assess how much for love, care and affection was gifted away and how much for Rs. 200. It has also been contended that the hiba‑bil‑iwaz that can be pre‑empted under section 26‑F of the Bengal Tenancy Act must be in the nature of sale and not the hiba‑bil‑iwaz as evidenced by Exh. 1. It is further contended that when Rs. 200 was given by the donee to the donor Ali Akbar, that was not given for consideration of the gift by Ali Akbar; rather, it was given by the donee of her own volition and without any consideration ; and that, similarly, the love, affection and care bestowed by the donee on the donor were free and without any consideration and, as such, though the document (Exh. 1) stated that the gift is a hiba‑bil‑iwaz for a consideration of Rs. 200 and for love and affection shown to the donor, it is not such a hiba‑bil‑iwaz which can be pre‑empted under section 26‑F of the Bengal Tenancy Act. In support of this contention, reliance has been placed on the following passages from Baillie's "Digest of Muhammadan Law" at pages 122‑123, 532 and 534. Pages 122‑123 : "Hiba‑bil‑iwaz means, literally, gift for an exchange ; and it is of two kinds, according as the iwaz or 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 iwaz, or exchange. But in the hiba‑bil‑iwaz of India, there is only one act; the iwaz 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 definition 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 hiba‑bil‑iwaz in India is, therefore, in reality not a proper hiba‑bil‑iwaz 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 hiba‑bil‑iwaz."
Page 532:-----"The iwaz, or exchange in gift, is of two kinds one subsequent to the contract; the other stipulated for in it. With regard to that which is subsequent to the contract, the subject may be considered under two heads : first, the conditions under which the exchanging is lawful, and the second gift becomes the iwaz, or exchange for the first ; and second, nature or essential character of the exchanging first, as to the conditions ; and these are three 1st, the iwaz, or exchange must be distinctly opposed to the prior gift by words clearly expressive of such opposition, as, for instance, by saying : `This is the iwaz', or `the budul", or `in place of thy gift' or `I have made a donation of this for thy gift,' or `have made it lawful to thee', or `established it to thee', or words of similar import. So that if one should give a thing to another, and the donee should take possession, and then make a gift of something to the donor, without saying `in iwaz of thy gift', or using some other of the forms of expression above mentioned, the second gift would not be an exchange for the first, but a new gift, and each of the parties would have the right to revoke."
Page 534 :‑"Second, as to the nature of essential character of the transaction. When the exchanging takes place subsequently to the gift, the iwaz is, without any difference of opinion between `our' masters, a gift ab initio. So that it is valid where a gift is valid, and void where a gift is void, there being no difference between them except as to the dropping of the power of revocation in the case of the iwaz, while it is established in that of the gift. And, after possession has been taken of the iwaz, the power to revoke drops also with respect to the gift. So that neither party can reclaim from his fellow what he has become possessed of whether the iwaz were given by the donee or by a stranger, with or without the direction. All the conditions of a gift are applicable to the iwaz, and the transaction does not come within the meaning of a contract of mooawuzut, or mutual exchange, either in its inception or completion. Hence, it is not exposed to shoofa, or the right of pre‑emption ; nor can the thing given be rejected on either side on account of defect."
5. In the present case, the petitioner made a gift of Rs. 200 to her father, the donor, towards his passage expenses to Mecca without any consideration or iwaz. This was a gift, pure and simple. Similarly, though in the document in question (Exh. 1) it is stated that the gift or "iwaz" is for the consideration of Rs. 200 advanced to the donor by the donee and also for love and affection bestowed on him, it cannot be said that this gift or exchange being involved in the contract of gift was its direct consideration and, as such, this is not a hiba‑bil‑iwaz as contemplated under section 26‑F of the Bengal Tenancy Act and, in my opinion, is not liable to be pre‑empted under the said section.
6. Furthermore, as I have already stated, the gift by Ali Akbar in favour of his daughter is of a composite character. The recitals of the document in question go to show that the gift was for a consideration of Rs. 200 advanced to the donor by the donee and also for love and affection bestowed upon him by the donee and for maintenance. Love and affection cannot be measured in money and, as such, it cannot be said that the gift in question is a hiba‑bil-iwaz wholly for consideration, though partly the gift or exchange is for Rs. 200. In the aforesaid circumstances, I am of the opinion that the gift in question is not a hiba‑bil‑iwaz as contemplated by section 26‑F of the Bengal Tenancy Act and, as such, it cannot be pre‑empted.
7. In the result, the Rule is made absolute with costs and the judgment and order of the lower Appellate Court are set aside and those of the trial Court restored.
K. B. A. Rule made absolute.