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Suba Bibi Vs. Balgobind Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All178
AppellantSuba Bibi
RespondentBalgobind Das
Excerpt:
.....property of muhammad-ud-din and as such liable to the attachment. in other words, was the deferred dower-debt good and valid consideration? the general rule of the muhammadan law is, that 'dower, like any other debt, may be made a consideration for a transfer of property from the husband to the wife'-tagore lectures 1873 p. ' applying these general principles as to deferred debts to the particular dower-debt with which we are concerned in the present case, i think that there was good consideration for the sale of the 23rd of june 1882, by muhammad-ud-din to the plaintiff, and that, in the absence of proof of fraud of the kind i have indicated by balgobind das, she is entitled to maintain it, and to succeed in the present suit. i quite agree as to the propriety of scrutinizing closely..........in favour of suba bibi, the plaintiff, the consideration recited therein being the amount of the dower-debt. subsequently balgobind das obtained a simple-money-decree against muhammad-ud-din for rs. 925-5-0, and in execution attached the four-anna share. suba bibi objected to the attachment on the basis of her sale-deed, but her objection was disallowed on the ground that the instrument was collusive. hence the present suit for a declaration of her right, and to set aside the attachment order. the subordinate judge decreed the claim; but the judge, on appeal, holding that 'the sale-deed was written simply in view to delay and defeat the creditor of the vendor,' reversed his decision, and dismissed the suit. it is from the judge's decree that the appeal to this court by suba bibi is.....
Judgment:

Straight, J.

1. This was a suit brought under the following circumstances: The plaintiff, Suba Bibi, is the wife of the defendant Muhammad-ud-din and was married to him in 1877. On the 22nd May in that year, Muhammad-ud-din executed a kabin-nama, deed of dower, in her favour, declaring the sum of Rs. 4,000 to be the amount of deferred dower due to her, and hypothecating a four-anna zamindari share. This instrument was not registered. Some time in June 1882, the defendant Balgobind Das commenced a suit against Muhammad-ud-din for recovery of a debt due to him from that person, and applied for attachment before decree of the four-anna share, which application was refused. On the 23rd June 1882, Muhammad-ud-din executed a deed of sale of the four-anna share in favour of Suba Bibi, the plaintiff, the consideration recited therein being the amount of the dower-debt. Subsequently Balgobind Das obtained a simple-money-decree against Muhammad-ud-din for Rs. 925-5-0, and in execution attached the four-anna share. Suba Bibi objected to the attachment on the basis of her sale-deed, but her objection was disallowed on the ground that the instrument was collusive. Hence the present suit for a declaration of her right, and to set aside the attachment order. The Subordinate Judge decreed the claim; but the Judge, on appeal, holding that 'the sale-deed was written simply in view to delay and defeat the creditor of the vendor,' reversed his decision, and dismissed the suit. It is from the Judge's decree that the appeal to this Court by Suba Bibi is preferred. It will be convenient here to remark that the proof put forward by the defendant in answer to the plaintiff's claim consists of the plaint in the former suit against Muhammad-ud-din, and the order of attachment obtained by him under his simple money-decree, bearing date the 5th July 1882. Beyond this there is no other proof. The question, then, with which we are concerned is whether the Judge's judgment can be sustained. In my opinion it cannot. A genuine sale made for good and valid consideration to one creditor, even if effected to delay and defeat another, apart, of course, from cases in which either insolvency or bankruptcy is involved, is not void. In other words, if a man owes another a real debt, and in satisfaction thereof sells to his creditor an equivalent portion of his property, transferring it to the vendee and thereby extinguishing the debt, the transaction cannot be assailed, though the effect of it is to give the selected creditor a preference. In Wood v. Dixie 7 Q.B. 892 the Court of Queen's Bench held that a sale of property for good consideration is not, either at common law or under the statute, void merely because it is made with intent to defeat the expected execution of a judgment-creditor; and in the days when there was forfeiture on conviction for felony, it was ruled that an assignment before conviction, if made bona fide, was not assailable--Chowne v. Baylis 31 L.J. Ch. 757; and see the authorities collected in the notes to Twyne's Case, 1 Smith's L.C. 12. In the present case, if there was, in fact, a subsisting debt due for dower from the husband to the wife, and he transferred and she accepted the four-anna share in satisfaction of it, the transaction was a perfectly legitimate one, and no Court has any power to disturb it. It was for the defendant Balgobind Das to establish either that the deferred dower-debt did not constitute such a present consideration as would support the sale, or that the transaction was merely colourable and a fictitious one, which was never intended to have operation or effect, either as a transfer of the property or an extinguishment of the dower-debt; and that, despite what appeared in the sale-deed, the parties remained in precisely the same position as before it was executed--the four-anna share still continuing the property of Muhammad-ud-din and as such liable to the attachment. I have already stated that the only materials put forward by the defendant Balgobind Das to support his plea of fraud are the plaint and the order of attachment in the suit of 1882. These of themselves are next to worthless; for, as I have observed, if Muhammad-ud-din did make the assignment of his property to his wife bona fide, and in payment of the dower-debt, it does not, in the slightest degree, matter that he did so to defeat any steps in execution that might be taken against him by Balgobind Das. The Judge's decision, 'therefore, so far as the grounds upon which he bases it are concerned, cannot be sustained. It remains, however, to be seen whether there was consideration for the sale; in other words, was the deferred dower-debt good and valid consideration? The general rule of the Muhammadan law is, that 'dower, like any other debt, may be made a consideration for a transfer of property from the husband to the wife'--Tagore Lectures 1873 p. 362; and when after dower has been fixed at a certain amount at marriage, and the husband subsequently sells his immoveable property in lieu of a part or the whole of such amount of dower, a person entitled to the right of pre-emption may assert it--Fida Ali v. Muzaffar Ali I.L.R. 5 All. 65. Upon the subject of deferred debts, the following passage from the Fataiva-i-Qazi Khan, Vol. III., p. 502, is important: 'If a person by whom a deferred debt is due makes a compromise with the creditor that the debt shall become exigible forthwith, it is valid when made without consideration, because the postponement was the right of the debtor, which he was entitled to forego. Similarly, if he should say 'I have annulled the postponement of this debt,' or 'I have relinquished the postponement,' this would amount to his saying 'I have rendered the debt exigible forthwith.'' So at p. 497 of the second volume of the same work, it is laid down: 'If a person to whom a deferred debt is due should purchase anything from his creditor in lieu of the deferred debt, and after taking possession should return the same by cancellation of the sale, the condition as to; postponement of the debt does not revive.' Applying these general principles as to deferred debts to the particular dower-debt with which we are concerned in the present case, I think that there was good consideration for the sale of the 23rd of June 1882, by Muhammad-ud-din to the plaintiff, and that, in the absence of proof of fraud of the kind I have indicated by Balgobind Das, she is entitled to maintain it, and to succeed in the present suit. I quite agree as to the propriety of scrutinizing closely transactions of such a character between husband and wives, but as in, I should say, ninety-nine out of a hundred cases among Muhammadans a dower-debt is due from the husband--a fact of which most people are aware--those who deal with the husbands have no reason to complain if, having failed to obtain security, they find themselves defeated by the preferential payment of a debt which stands upon just as legal a footing and equality as their own. In the view I take of the matter, the appeal is decreed with costs, and the decision of the Subordinate Judge-being restored, the plaintiff's claim will stand decreed with costs in all Courts.

Brodhurst, J.

2. For the reasons given by my brother Straight, I concur with him in decreeing the appeal, and in restoring the judgment of the Court of First Instance, with costs in all the Courts.


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