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Hamid-un-nissa Bibi Vs. Nazir-un-nissa Bibi and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in1Ind.Cas.883
AppellantHamid-un-nissa Bibi
RespondentNazir-un-nissa Bibi and anr.
Excerpt:
fraudulent transfer - muhammadan law--suit for dower by first wife--transfer to second wife in lien of dower--transfer before decree but after institution of suit by first wife--collusive transaction. - - if she did so combine, she would not be a transferee in good faith. 2. was the defendant nazir-un-nissa a transferee of the property comprised in that transfer in good faith 4. we refer the above issues to the learned district judge under order 41, rule 25, civil procedure code......a suit for the recovery of it on the 1st december 1904. five days after the institution of this suit ali jawad made the transfer which is impeached in this suit. on the 22nd of february 1905 the plaintiff-appellant obtained a decree for her dower amounting to rs. 5,000 and forthwith proceeded to execute her decree. she was resisted by the defendant respondent musammat nazir-un-nissa and in consequence the suit out of which this appeal has arisen was instituted.2. the court of first instance dismissed the plaintiff's claim. upon appeal the learned district judge affirmed the decision of the court below.3. the main ground of that appeal was that the deed of transfer in question was a collusive and fictitious document, and that the dower of the defendant was only 500 dirhams and not, as.....
Judgment:

1. This appeal arises out of a suit brought by the first wife of the defendant Ali Jawad, for a declaration that a transfer made by him on the 6th of December 1904 substantially of all his property in favour of his second wife was void against her. It appears that the appellant Hamid-un-nissa Bibi demanded her dower from her husband and instituted a suit for the recovery of it on the 1st December 1904. Five days after the institution of this suit Ali Jawad made the transfer which is impeached in this suit. On the 22nd of February 1905 the plaintiff-appellant obtained a decree for her dower amounting to Rs. 5,000 and forthwith proceeded to execute her decree. She was resisted by the defendant respondent Musammat Nazir-un-nissa and in consequence the suit out of which this appeal has arisen was instituted.

2. The Court of first instance dismissed the plaintiff's claim. Upon appeal the learned District Judge affirmed the decision of the Court below.

3. The main ground of that appeal was that the deed of transfer in question was a collusive and fictitious document, and that the dower of the defendant was only 500 dirhams and not, as she alleged, Rs. 20,000. As regards the amount of the dower both Courts find that the dower of the defendant Nazir-un-nissa was Rs. 20,000, but the learned District Judge finds that the impeached deed of transfer was undoubtedly a device on the part of Ali Jawad to deprive his first wife of the fruits of her victory in her suit for dower. He refers to a number of authorities and observes: 'Taking the trend of all these rulings I am of opinion that the deed of gift cannot be looked upon as a fraudulent transaction.' He then says, 'at the time of the gift the dower of the second wife was still, due to her and constituted a valid debt in payment of which he could under the law make a valid gift of all his property to her,' and then he observes 'I must, therefore, hold that in law the transaction is unimpeachable.' Now it may be true that a transfer by Ali Jawad to his second wife of all his property in satisfaction of her dower may be a valid and unimpeachable transaction, but that is not the sole question for determination. Having found that the transfer to his second wife was made by Ali Jawad for the purpose of defeating his first wife's claim and depriving her of the fruits of her successful litigation, it was necessary for the learned District Judge to determine whether or not the second wife was a party to the improper conduct of her husband. In other words whether or not she combined with her husband in carrying out the transaction in question for the improper purpose of defeating the claims of the first wife. If she did so combine, she would not be a transferee in good faith. It was further alleged that there was in reality no real and genuine transfer by the husband to his second wife. Before, therefore, we can determine this appeal we must have definite findings upon the following two issues:

1. Whether the transfer of the 6th of December 1904 was a real transaction or merely colourable?

2. Was the defendant Nazir-un-nissa a transferee of the property comprised in that transfer in good faith

4. We refer the above issues to the learned District Judge under order 41, Rule 25, Civil Procedure Code. These issues be will determine upon the evidence already before him, On return of the finding the parties will have the usual ten days for filing objections.


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