1. This is an appeal against an order of remand passed under Order 41, Rule 23, Civil P.C., in A.S. 180 of 1926.
2. The defendants are the appellants and the plaintiff the respondent before us. The suit was brought by the plaintiff, mortgagee, to enforce a covenant of preemption in his favour in a mortgage-deed, dated 10th September 1923 (Ex. A), executed by defendant 1. Under that covenant, the mortgagor, defendant, agreed that in the event of his deciding to sell the mortgaged properties within the period fixed in the mortgage bond for the payment of the mortgage debt, he should offer them for sale at the then market price, in the first instance, to the plaintiff. The plaintiff's case is that in breach of the said covenant defendant 1 sold the mortgaged properties to his wife, defendant 2, for Rs. 700 by a registered sale-deed, Ex II, dated 5th November 1923. The plaintiff says that defendant took the sale-deed with notice of his right of pre-emption, and that he is therefore entitled to. enforce that right against her also. Plaintiff prays for the execution by the defendants of a sale-deed in his favour of the properties in respect of which he has a right of pre-emption under the mortgage-deed, Ex. A, subject to his paying such amount as may be ascertained by the Court to be payable by him as the market value of the property after giving credit for the mortgage money due to him from defendant 1.
3. The defendants contested the suit alleging that there was no agreement to sell the property to him, and even if there was, it was not enforceable, not being supported by consideration. They further pleaded that the conveyance by defendant 1, to his wife defendant 2, was not a sale as it was executed only in consideration of the mahar of Rs. 700 due to her and that the plaintiffs' suit was also not maintainable as there was no tender of the price by him. Defendant 2 further pleaded that she is a bona fide purchaser of the property without knowledge of the agreement in plaintiff's favour.
4. The District Munsif found-in plaintiff's favour that under the mortgage-deed he had a valid covenant for pre-emption in respect of the mortgaged properties if the mortgagor wanted to sell those properties within the period fixed for redemption of the mortgage. As regards the conveyance executed by defendant 1 in defendant 2's favour, he held that it was made in consideration of Rs. 700, being the mahar debt due to her, and that the conveyance made for such a consideration was according to Mahomedan law not a sale but a gift for consideration which is styled ' hiba-bil-iwaz,' and as defendant 1 had not sold the property, the plaintiff had no cause of action for the suit and on that ground he dismissed the suit. The District Munsif did not consider it necessary to give a finding on the question raised in issue 4 whether defendant 2 took the conveyance in her favour with knowledge of defendant 1's agreement with the plaintiff. In appeal by the plaintiff against the said decree, the learned Subordinate Judge not only upheld all the findings of the District Munsif, which were in plaintiff's favour, but also held that the conveyance to defendant 2 was a sale and not a gift and that therefore the plaintiff would have a right to enforce his right of preemption against her if she had purchased with knowledge of that agreement. As that question had not been decided by the District 'Munsif, being in his view unnecessary for the disposal of the case, the learned Subordinate Judge set aside the District Munsif's decree and remanded the suit for a fresh disposal after trying the remaining issues in the case.
5. The appeal before us has been preferred by the defendants against the said order of remand. In support of the appeal the learned vakil for the appellants wants to contend before us not only that the finding of the learned Subordinate Judge as to the nature of Ex. II on which he ordered the remand is erroneous, but also, that the other findings of the Subordinate Judge, which are in plaintiff's favour, are erroneous. He argues that in this appeal it is open to him to contest before us the findings of the lower appellate Court on any question which was decided against him, whether it be one of fact or of law which if decided in the appellant' favour would have obviated the remand. The point thus raised relates to the scope of an appeal against an order of remand under O.41, Rule 23. Under that rule it is open to the appellate Court, if it thinks fit, to remand a case to the Court of first instance for disposal when the lower Court has disposed of the suit on a preliminary point and its decree is reversed in appeal. In the recent Full Bench case reported in Raman Nair v. Krishnan Nambudripad A.I.R. 1922 Mad. 505 a preliminary point has been defined as any point, whether of fact or of law, the decision of which avoids the necessity for a full hearing of the suit. In this case the preliminary point upon which the suit was disposed of by the District Munsif was that Ex. II was not a sale-deed but a gift, and in that view he did not decide the further question whether defendant 2 had notice of the agreement with the plaintiff on which the suit was brought. The lower appellate Court, differing from the Munsif held that Ex. II was a sale and in that view the trial of the further question which was left undecided by the District Munsif became necessary. On that ground the Court, acting under Rule 23, made the order remanding the case to the Court of first instance for disposal. In the Code an order of remand is not a decree but an order against which an appeal is provided under Order 43, Rule 1 (u). Section 105, Sub-section (2), has a material bearing on this question. It says:
Notwithstanding anything contained in Sub-section (1), when any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall be thereafter precluded from disputing its correctness.
6. We think that this provision confines the scope of the appeal to the question of the correctness of the order of remand, which may be impeached either on the ground that the remand itself was illegal as the decision of the first Court was not on a preliminary point or on the ground that the decision of the preliminary point by the appellate Court is erroneous. No other questions can be raised in this appeal, whatever bearing they may have upon the merits of the appellants' case. That this is the right view to take will appear if the question is looked at in another way. Suppose no appeal is preferred against the order of remand and the case is tried by the first Court and a fresh decree passed after re-trial: a first appeal will lie, against such a decree by the party aggrieved and a further second appeal will also lie from any decree which may be passed by the appellate Court, subject of course to the conditions laid down under Section 100, Civil P.C. If such a second appeal comes to be preferred the only question which cannot be re-agitated in second appeal by reason of Section 105, Sub-section 2 is the correctness of the finding of the point upon which the order of remand had been made. All other questions which may be raised in a second appeal will be open to either party to be raised in such second appeal. To accede to the appellant's contention would be practically to convert the appeal from the order of remand into an appeal from the decree itself, because if the appellants are to be allowed to raise points decided against them by the lower appellate Court in order to sustain the decree of the Court of first instance, the respondents also must equally be permitted to contest the findings of the appellate Court against them, in order to sustain the decree of the lower appellate Court. In our opinion such a procedure is altogether unwarranted, and the only point which may be raised in this appeal is the correctness of the finding of the Subordinate Judge that Ex. 2, the conveyance by defendant 1 in defendant 2's favour is a sale and not a gift as held by the District Munsif. We need hardly add that upon this view neither party will be precluded from raising any other question which may be legitimately open to him, if and when this case comes before this Court hereafter in second appeal.
7. The conveyance Ex. 2, is by the parties to it styled as a sale-deed. It is admitted by both the parties that at the date of Ex. 2 defendant 1 was indebted to his wife, defendant 2, in the sum of Rs. 700 being the amount due to her for her dower and that the consideration for the transfer recited in Ex. 2 was the discharge of that debt. The question therefore is whether the absolute transfer of the properties by the husband to his wife by way of sale in discharge of her dower debt is according to the principles of Mahomedan law to be regarded as a sale or as a gift for consideration. The same question has been raised with regard to two kinds of transactions governed by the Mahomedan law namely: (1) death-bed gifts and (2) the right of pre-emption of a cosharer. A gift made by a Mahomedan during death illness cannot take effect beyond a third of his surplus of his estate after payment of funeral expenses and debts, unless the heirs give their consent after the death of the donor to the excess taking effect; nor can such gifts take effect if made in favour of an heir unless the other heirs consent thereto after the donor's death.
8. It has been held that a transfer of property made by a Mahomedan husband to his wife in lieu of her dower debt during his death illness is in effect a sale although it may be described in the conveyance as a gift, and that being a sale it cannot be impeached by the heirs to any extent: see Gulam Mustafa V. Hurmat 1880] 2 All. 864 followed in Esahaq Chowdry v. Abadunnesa Bibi  42 Cal. 361. On the other hand if the transaction is really a gift, but described as a sale in order to evade the pro-visions of the law relating to death-bed gifts, it will be valid only to the extent to which such gifts are valid under the Mahomedan law. We have therefore to see what the document is in substance, and not how it is styled by the parties to it.
9. As regards the right of pre-emption: a co-sharer's right under the Mahomedan law is recognized and applied by the Courts of the other Presidencies though such a right is not recognized in this Presidency. The right arises only when a valid and completed sale has been effected by a cosharer of his immovable properties. It does not arise when the property has been given away by a gift. It has been held that the transfer of property by a husband to his wife in lieu of her dower, the amount of which had already been fixed, is a sale and not a gift and that therefore the cosharer of the transferor may exercise the right of preemption against the transferee. The leading case on the point is Fida Ali v. Musaffer Ali  5 All. 65. In that case in delivering the judgment of the Court, Mahmood, J., after pointing out that according to the well-established principles of Mahomedan law, sale is an essential condition precedent to the operation of preemption, observed:
The transfer of property to operate as a sale must have been made either for a definite sum of money or in exchange of other property capable of being estimated at a definite sum of money. Where the consideration is not capable of being estimated at a definite money value as for example, where a man on marrying a woman does not fix the amount of. dower at a money value, but assigns property to her as her dower, the right of pre-emption cannot have any operation, the transfer not being a sale and the consideration thereof unascertained or unascertainable at a definite money value. But no such impediment to the operation of the right of pre-emption exists in cases in which the dower was originally fixed at an ascertained amount and property is subsequently sold to the wife in lieu of the part of or the whole of such amount of dower: Fida Ali v. Musafar Ali  5 All. 65.
10. This case has been followed in Nathu v. Shadi  37 All. 522 notwithstanding Mr Amir Ali's disapproval of it in his Mahomedan Law. The principle of these decisions is clearly applicable to the present' case in which the plaintiff seeks to enforce a right in the nature of pre-emption which he has become entitled to under a contract, against defendant 2 to whom the property has been transferred in payment of her ascertained dower. Apart from Mahomedan law, it has also been held that if a transfer of property by a Mahomedan to his wife in lieu of her dower is in substance a sale as defined in the Transfer of Property Act, it cap be legally effected only by a registered sale-deed. In the present case the transfer has been so effected, and we have no doubt that it is a sale as it purports to be. We are therefore of opinion that the view taken by the learned Subordinate Judge, that Ex. 2 is a sale and not a gift for consideration, hiba-bil-iwaz, is correct.
11. On that finding, some further questions have to be tried by the trial Court before the suit can be finally disposed of, namely, whether defendant 2 got the sale-deed from defendant 1 in her favour with notice of the plaintiff's right of pre-emption, and if so, what was the market value of the mortgage property at the time of its sale to defendant 2. The case was, therefore, rightly remanded to the Court of first instance for disposal after trying the. further questions involved in it. The appeal is dismissed with costs.