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Sadiq Ali and ors. Vs. Zahida Begam - Court Judgment

LegalCrystal Citation
Subject Family
CourtAllahabad
Decided On
Reported inAIR1939All744
AppellantSadiq Ali and ors.
RespondentZahida Begam
Excerpt:
- - the defendants' case was that thin assignment was made to her in lieu of her dower, while the plaintiff contended that the assignment was made on account of love and affection and not in lieu of her dower. i, tasadduq husain, in consideration of natural love and affection do hereby assign the benefit of a 11 moneys to become payable under this. on the other hand, the proviso to this endorsement clearly says that the assignment was not to take effect in case the wife died during the lifetime of her husband......in the endorsement of assignment itself (sic) assignment was (sic) have been made in lieu of dower. the endorsement is:i, tasadduq husain, in consideration of natural love and affection do hereby assign the benefit of a 11 moneys to become payable under this....6. if this assignment was made in lieu of her dower, it should have been so stated is the endorsement. on the other hand, the proviso to this endorsement clearly says that the assignment was not to take effect in case the wife died during the lifetime of her husband. the plaintiff's heirs would have been entitled to the dower on her death. if this assignment were made in lieu of dower, there was no reason to deprive the plaintiff's heirs of her dower in case she died before her husband. under this proviso her heirs would not.....
Judgment:

Ganga Nath, J.

1. This is a defendants' appeal arising out of a suit brought against thorn by the plaintiff-respondent to recover Rs. 10,000 for her dower and interest thereon. The plaintiff is the widow of Khan Bahadur Tasadduq Husain. The defendants arcs his other heirs. It was not contested that her dower was Rs. 10,000. The defendants contended that it had been paid up by the assignment of three assurance policies of Rs. 6000 each by the plaintiff's husband before his death. The learned Civil Judge found against the defendants and decreed the suit. It is not denied by the plaintiff that three assurance policies of Rs. 6000 each were assigned to her by her husband, K.B. Tasadduq Husain, before his death. The defendants' case was that thin assignment was made to her in lieu of her dower, while the plaintiff contended that the assignment was made on account of love and affection and not in lieu of her dower. It has been contended on behalf of the appellants that the dower was paid up by this assignment; and if it was not, the assignment amounted to a gift which was invalid, and they were entitled to their share in the money which was realized by the plaintiff under the assignment. The appellants produced three witnesses, two of whom are defendants themselves. Zahir Alam and Zafar Alam are both the sons of K.B. Tasadduq Husain. Zafar Alam has stated:

Plaintiff is my step-mother. K.B. Tasadduft Husain assigned three policies of value of Rs. 18,000 plus bonus to my step-mother and one policy of Rs. 6000 with bonus to my younger brother, Inamul Hasnain.... My father told me that Begam Saheba and her relations had been pressing him very much to make provision for the youngsters and that Begam Saheba should get her mahar, which was Rs. 10,000. Father told met that he told Begam Saheba and her relations that he had no ready cash to pay her or to make provision for the youngsters. He told me that he told Begam Saheba that he was going to insure himself and then assign the policies to Begam Saheba to meet his liabilities to her and the provision for the children. He said that the money which would come from the policies out of that Rs. 10,000 would go for dower of Begam Saheba and Rs. 10,000 would be for the education and maintenance of the children, as he was receiving threatening letters from the revolutionaries and he had no cash.

2. Zahir Alam has deposed:

Khan Bahadur one day sent for me and my brother at Hapur, while he was sitting near his father. He then said that his wife's, my stepmother's relations were insisting that provision ba made for her children and dower. He said as he had no money in cash, he wanted to make arrangements for this by life insurance.... Excepting what I have said above, my father said nothing else in particular.

3. On comparing these two statements it will be found that there is some conflict in them. Both these witnesses have admitted that there was no talk about the payment of dower before this. Zafar Alam has stated:

Father never mentioned to me about the dower except on the occasion I referred to, viz., early-October 1930, or what provision would be made for the dower.

4. Zahir Alam also has stated:

No reason was told us by father why the other relations were wishing upon provision for dower. This was the first occasion when talk about dower took plate with us.

5. It has not been explained what necessity arose for making this provision for payment of the dower and why the dower was demanded suddenly for the first time by the plaintiff. It is admitted by Zahir Alam that the relations between the father and the plaintiff were cordial. There is intrinsic evidence in the endorsement of assignment itself (sic) assignment was (sic) have been made in lieu of dower. The endorsement is:

I, Tasadduq Husain, in consideration of natural love and affection do hereby assign the benefit of a 11 moneys to become payable under this....

6. If this assignment was made in lieu of her dower, it should have been so stated is the endorsement. On the other hand, the proviso to this endorsement clearly says that the assignment was not to take effect In case the wife died during the lifetime of her husband. The plaintiff's heirs would have been entitled to the dower on her death. If this assignment were made in lieu of dower, there was no reason to deprive the plaintiff's heirs of her dower in case she died before her husband. Under this proviso her heirs would not have got any benefit under the assignment. This fact loaves no room for doubt that the assignment was not made in lieu of dower.

7. It has been further contended by learned Counsel for the appellants that this assign. merit amounted to a gift, and it was invalid under the Mahomedan law. The validity of the assignment has been attacked on two grounds, namely that it was a gift in future and a contingent gift. It is essential for the validity of a gift that there should be : (1) a declaration of the gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee. If these condition are complied with, the gift is complete. In this case there is a declaration by the donor in the shape of the assignment. The assignee has stated on oath that the policies were handed over to her and she accepted thorn. The gift was therefore complete as soon as these conditions were complied I with. The mere fact that the money was Co be realized in future is not enough to make it a gift in future. Otherwise gifts of actionable claims would not be possible. It is not disputed that valid gifts can be made of actionable claims.

8. In the present case what was gifted was the right to receive the money under the policies. In Ahmad SIC v. Hahi Baksh, (1912) 34 All 465, a gift was made of the right to receive a specified share of the of brings which might be made at a particular shrine. It was contended that a gift of the right to receive offerings was not valid, inasmuch as the thing gifted was not In existence and a gift of future things was void. It was observed:

The deed of 11th January 1900 purports to transfer to Ilahi Baksh the right of Maksudunnissa to receive a specified share in the offerings made by pilgrims at a certain shrine in the town of Amroha. It is contended before us that such a gift is invalid under the Mahomedan law, because it is a gift of a thing not in existence at the time and incapable of that actual seisin which the Mahomedan law requires in to make a gift valid. We think that the thing gifted in this case must be regarded as being the right of the donor, to receive a fixed share in the offerings after they have been made, and this is an enforceable right in the sense that it is enforceable in law as against other cosharers in the same.

9. These observations apply fully to the present case. Whether the gift is complete and in presenti or not depends on the question whether the donor has divested himself of the property and conferred it on the donee. In the present case the as. signor completely divested himself of all his rights and conferred full ownership on the plaintiff as soon as he made the assignment. In Sadik Husain Khan v. Hashim Ali Khan (1916) 3 A.I.R. P.C. 27 it was observed by their Lordships of the Privy Council:

In Chaudhri Mehdi Hasan v. Muhammad Hasan (1906) 28 All. 439 at p. 449 it is laid down by this Board that, according to Mahomedan law, holder of property may in his lifetime give away the whole or part of it if he complies with certain forms, but that it is incumbent on those who seek to set up such a transaction to prove that those forms have been complied with, and this will be so whether the gift be made with or without consideration. If the latter, then unless it be accompanied by delivery of the thing given, so far as it is capable of delivery, it will be invalid. If the former, delivery of possession is not necessary, but actual payment of the consideration must be proved, and the bona fide intention of the donor to divest himself in prasenti of the property and to confer it upon the donee must also be proved.

10. Section 38(1), (2) and (5), Insurance Act, (No. 4 of 1938) enacts:

(1) A transfer or assignment of a policy of life insurance, whether with or without consideration, may be made only by an endorsement upon the policy itself or by a separate instrument, signed in either case by the transferor or by the assignor or his duly authorized agent and attested by at least one witness, specifically setting forth the fact of transfer or assignment.

(2) The transfer or assignment shall be complete and effectual upon the execution of such endorsement or instrument duly attested but shall not be operative as against an insurer and shall not confer upon the transferee or assignee, or his legal representative, any right to sue for the amount of such policy or the moneys secured thereby until a notice in writing of the transfer or assignment has been delivered to the insurer at his principal place of business in British India by or on behalf of the transferor or transferee.

(5) From the date of the receipt of the notice referred to in Sub-section (2) the insurer shall recognize the transferee or assignee named in the notice as She only person entitled to benefit under the policy, rind such person shall be subject to all liabilities and equities to which the transferor or assignor was subject at the date of the transfer or assignment and may institute any proceedings in relation to the policy without obtaining the consent of the transferor or assignor or making him a party So such proceedings.

11. These provisions have been duly com. plied with. The assignment therefore be slime complete and effectual as soon as the required endorsement duly attested was wide. The assignment, even if it amounted to a gift, was a gift in presenti and not in future, It has also been contended by learned Counsel that the gift was contingent and therefore void under the Mahomedan law. If this assignment is to be regarded as a gift, as in contended by learned Counsel for the appellants, the defect of contingency in validated by the provisions of Sub-section (7) of Section 38, Insurance Act, which lays down:

Notwithstanding any law or custom having the force of few to the contrary, an assignment in favour of a person made with the condition that it shall be inoperative or that the interest shall pass to some other person on the happening of a specified event during the life of the policy-holder and an assignment in favour of the survivor or survivors of a number of persons shall be valid.

12. The words 'any law or custom' are wide enough to cover the Mahomedan law in the present case. The gift therefore is not invalid on account of the proviso

that in the event of my said wife predeceasing me, this assignment shall become null and void, as if it had not been made.

13. We therefore hold that the assignment was valid. There is no force in the appeal. It is therefore ordered that the appeal be dismissed with costs.


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