1. The facts of this case are on all fours with those of Kulsum Bibi v. Shiam Sunder Lal reported in : AIR1936All600 , which has been already disposed of by this Bench. It appears that, the property in dispute was attached by a creditor, named Mussaddi Lal, respondent in that appeal, and also by Bashir, respondent of the present appeal. The appellant, Mt. Kulsum Bibi, the widow of the-judgment-debtor Habib Baksh, objected; on the ground that the property had been, given to her by her husband in lieu of her dower amounting to Rs. 21,000 and that it did not form part of the assets of the deceased. The decree-holders in two separate cases pleaded that Habib Baksh. had not, in fact, made any gift in favour of his wife and that, in any case, the gift, being in fraud of his creditors was void. The objections were dismissed. Mt. Kulsum Bibi came to this Court in appeal, and the case was remanded with a direction that the following two issues be determined and the cases disposed of in accordance with the findings thereon : (1) Did Habib Baksh make an oral gift in respect, of the houses in question in favour of Mt. Kulsum Bibi in lieu of her dower, as alleged by her, and whether the same was valid? (2) If the first issue is found in the affirmative, then was the gift made with a. view to defraud his creditors
2. The trial Court held that no gift was, in fact, made by Habib. Baksh and that, on the own showing of Mt. Kulsum Bibi: the gift had been reduced into writing. Consequently, oral evidence in proof thereof was inadmissible. On the second issue it was found that the gift was fraudulent toeing intended to defeat the claim of the creditors. On these findings the objections of Kulsum Bibi were dismissed. She again appealed to this Court. Ex. E. A. No. 317 of 1931, Mt. Kulsum Bibi v. Mut-saddi Lal has already been disposed of by us. We held in that case that Habib Baksh had made an oral gift in consideration of his wife relinquishing her claim to dower amounting to Rs. 21,000 and that there was no gift in writing, as held by the Subordinate Judge. As a matter of fact, Habib Baksh had recited the factum of gift in an application made to the Cantonment authorities immediately after the gift, asking them to give effect to the delivery of possession under the gift by mutation of names in favour of the donee. Reference in the evidence of Mt. Kulsum to a writing related to this application and not to a written instrument evidencing gift. Our finding on this part of the case is fully stated in our judgment in Kulsum Bibi v. Shiam Sunder Lal reported in : AIR1936All600 . By agreement of the parties in the lower Courts, evidence in one case was treated as evidence in the either. Having heard counsel for the respondents in this case, we see no reason to take a different view from what we did in the earlier case.
3. Accordingly we hold, for the reasons given in the other case, that Habib Baksh made an oral gift of the property in dispute in this case to his wife, Kulsum Bibi, who, in her turn, relinquished her claim to prompt dower amounting to Rs. 21,000. There was some controversy as regards the amount of dower due to her. The trial Court found that it was Rs. 21,000, and we upheld that finding. We take the same view in the present case on that question also. On the second issue we held in the other case that it was a case of debtor giving preference to one pf his creditors, and though the transaction had the effect of wholly or partly defeating the claims of other creditors, the gift could not be set aside as fraudulent. For the reasons on which our view proceeds on this point our judgment in Kulsum Bibi v. Shiam Sunder Lal reported in : AIR1936All600 should be read. It is not necessary to recapitulate all that we said in disposing of that appeal. We have, however, considered the arguments put forward on behalf of the respondent Bashir Ahmad, and are of opinion that the view taken by us in the earlier case is not shaken by the authorities which have been referred to in the course of arguments in this case. The learned Counsel contended that the 'hiba-bil-iwaz' pleaded in this case is in reality a sale and therefore a registered instrument was essential. Reliance is placed on Baillie's Muhammadan Law, Vol. I, p. 122 in which the following passage occurs:
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.
4. We take this passage to mean that the 'hiba-bil-iwaz' known to Muhammadan Law, is made up of two distinct gifts, each party to the transaction being donor in one and donee in the other, with the result that the rule as to delivery of possession and the limitation imposed by the doctrine of 'musha' are applicable to both gifts, so that, if a transaction be treated as 'hiba-bil-iwaz' as contemplated by Muslim jurists, delivery of possession for both gifts is essential, and neither of the two should be affected by the doctrine of 'musha'. Baillie goes on to point out that a unilateral transaction miscalled in India as 'hiba-bil-iwaz' is in reality either a sale or an exchange, and viewed in this light it sails clear both of the rule of Mahomedan law requiring delivery of possession and the doctrine of 'musha' which forbids a gift of undivided property. We do not think that, according to Baillie, if a transaction called 'hiba-bil-iwaz' has all the attributes of a true 'hiba-bil-iwaz' known to the Mahomedan law, it should not be treated as such in India but should for all purposes be taken to be either a sale or an exchange. In our view, if a transaction can be shown to possess all the attributes of a true hiba-bil-iwaz' there is no reason why it should not be recognized as such in British India. Where delivery of possession has taken place and the transaction is not affected by the doctrine of 'musha', the party relying on it is entitled to have it upheld, even though both the gifts were made by word of mouth. The Transfer of Property Act does not apply to a gift by a Mahomedan. There is no other law which makes a registered instrument necessary for effect-ling a gift. We see no reason why two Muslims cannot, by an oral transaction, transfer to each other two properties, each in exchange of the other. Properly analysed, each makes a gift of his property to the other. By this means they secure the advantage of dispensing with instruments of gift. But, on the other hand, they subject themselves to certain disabilities imposed by Mahomedan law. For example, no gift can be made without delivery of possession, and when the subject of gift is undivided property the doctrine of 'musha' will stand in their way. If all the conditions required by the Mahomedan law of gift are fulfilled, it is not open to a party impugning the 'hiba-bil-iwaz' to say that in its result the transaction is an exchange of properties, and therefore it could not be effected without a registered instrument. To accept this contention will be tantamount to holding that in British India Muslims are not allowed to orally enter into a transaction of hiba-bil-iwaz' for which in our opinion there is no authority.
5. In the present case, the evidence clearly shows that a sum of Rs. 21,000 was due to Kulsum Bibi as her prompt dower from her husband, Habib Bakhsh. The latter, who was apprehensive of the whole of his property being sold for satisfaction of the claims of other creditors, gave preference to his wife and made a gift of the property in dispute to her, delivering such possession as he had and requesting the Cantonment I authorities to give effect to the transfer in their register. Simultaneously, or immediately afterwards, Kulsum Bibi, who accepted the gift, gave a discharge to her husband in respect of her dower debt amounting to Rs. 21,000. Properly analysed, the transaction is clearly divisible into two distinct transactions, namely, a gift by Habib Bakhsh of his property to his wife, and a gift by Kulsum Bibi of her right to recover Rs. 21,000 from her husband. It was contended before us that Kulsum Bibi merely relinquished her dower, and cannot be said to have made a gift of it to her husband. It may be that for linguistic purposes the word relinquishment is a more idiomatic and correct expression; but in the eye of the law it is a gift of her right to recover dower from her husband. It cannot be disputed that, if she had transferred her right to receive her dower to a third person without receiving consideration therefor, the transaction would have been a gift. It cannot be otherwise if the right is transferred to the husband himself. It is not a case of relinquishing a doubtful or disputed claim. It is clearly a case of a right to property; and if the wife extinguishes it and the husband has the benefit of her act by his corresponding liability being extinguished, we are of opinion that in its essentials the transaction can be properly called a gift by the wife to the husband.
6. We were referred to Hitendra Singh v. Maharaja of Darabhanga A.I.R. 1928 P.C. 1928 P.C. 112. In that case a Hindu husband transferred some property to his wife by a registered instrument styled as a 'hiba-bil-iwaz.' It was found that the transfer was in lieu of a substantial consideration. One of the parties contended that the wife acquired no more than a life estate, because under the Hindu law a wife is presumed to have only a life interest in the property given to her by her husband. Their Lordships held that the rule of Hindu law was inapplicable inasmuch as the transaction was not one of gift but of a transfer for consideration. Their Lordships, observed that it was not a gift pure and simple but a transfer for consideration, which was not illusory but substantial. They proceeded to say:
Under the Mahomedan law a transfer by way of a 'hiba-bil-iwaz' is treated as a sale and not as a gift. The limitation on alienation imposed by the Mithila law in the case of a gift by husband to wife applies exclusively to pure and simple gifts, and not to a gift for consideration such as in the present case.
7. A passing reference to Mahomedan law in the circumstances in which it was made cannot, in our opinion, be construed as a dictum to the effect that all transactions of 'hiba-bil-iwaz' are regarded by Mahomedan law as sales and not as gifts. The observation must be taken with due regard to the context in which it occurs and is no authority for the proposition contended for in the present case. Rahim Bakhah v. Muhammad Hasan (1888) 11 All 1 was also referred to. Mohamood, J. has elaborately explained the implications of a true 'hiba-bil-iwaz' distinguishing it from the so-called 'hiba-bil-iwaz' in which there is a gift only by one of the parties in consideration of illusory return, such as natural love and affection and personal services. That case is an authority for the proposition that a gift in lieu of natural love and affection and services cannot be regarded as 'hiba-bil-iwaz' as natural love and affection or services cannot in their nature be the subject of a gift. Sarifuddin Muhammad v. Mohiuddin Mahammad : AIR1927Cal808 is hardly an authority in support of the respondent's case. It was held in that case that to the true hiba-bil-iwaz' the doctrine of 'seizin' and 'musha' apply alike to the original gift and the gift in return, but neither 'seizin' nor 'musha' apply to the false hiba-bil-iwaz' because such a transaction is not a 'hiba-bil-iwaz' at all and nothing more nor less than a sale. The judgment of Page, J. has discussed the question at great length to repel the contention that the transaction in question in that case was invalid, having regard to the rules of Mahomedan law relating to delivery of possession and to the doctrine of musha. The learned Judge found all the elements of a valid sale being present in the transaction. Accordingly he held that as regards certain properties absence of delivery of possession or the property being undivided did not matter. We have not been referred to any case in which, though all the attributes of a 'hiba-bil-iwaz' were present, the transaction was held to be invalid as such for want of a registered instrument. In every reported case it was to the interest of the party relying upon the transaction to show that it fulfilled all the requirements of a sale or exchange, and to have it upheld as such. The party impugning its validity relied upon the rule of Mahomedan law requiring delivery of possession or prohibiting a gift of undivided property.
8. An attempt was made to show that Habib Bakhsh transferred property of greater value than Rs. 21,000, the amount of dower which Mt. Kulsum Bibi relinquished. The respondent did not allege in his reply to the objection made by the appellant that the value of the property given to her was more than Rs. 21,000. We have not been referred to any evidence tending to prove that fact. It is, therefore, impossible to say that any part of the property given by the husband was not covered by the corresponding gift by the wife. The result is that the appeal is allowed with costs, the order of the lower. Court is set aside, and the appellant's objection is upheld. The property claimed by her shall be released from attachment.