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KutubuddIn Ahammed and ors. Vs. Kashim Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 902 of 1969
Judge
Reported inAIR1972Cal293,76CWN57
ActsWest Bengal Land Reforms Act, 1956 - Section 8(1) and 8(2); ;Transfer of Property Act, 1882 - Section 122
AppellantKutubuddIn Ahammed and ors.
RespondentKashim Ali and anr.
Appellant AdvocateB.C. Roy and ;Diptikana Bose, Advs.
Respondent AdvocateSudhanshu Bhusan Sen, ;Archana Roy and ;Nemai Chandra Kumar, Advs. for Opposite Parties Nos. 1 and 3
DispositionPetition dismissed
Cases ReferredAndhra Pradesh v. Motors and General Stores
Excerpt:
- .....land of the said khaitan, for a consideration of a copy of holi koran, under a deed described as 'heba-bil-ewaz'. for the purpose of registration the said deed was valued at rs. 1,000/-. the said hazi fakiruddin, thereafter, made an application on 11th of june, 1965, to the revenue officer praying pre-emption undersection 8(1) of the west bengal land reforms act (hereinafter referred to as 'the act'), with respect to the above transferred land and deposited rs. 1,000/- together with 10% interest. on 2nd of september, 1967, the revenue officer dismissed the said application upon the view that heba-bil-ewaz is a gift for consideration, it may be a sale in reality but it is a gift in form. the pre-emptee took an appeal against the said order of the revenue officer. during the pendency of.....
Judgment:
ORDER

Amiya Kumar Mookerji, J.

1. This Rule was obtained by the petitioners against an appellate order of the learned Munsif, rejecting the petitioners' application for pre-emption under Section 8(1) of the West Bengal Land Reforms Act, 1955.

2. One Hazi Fakiruddin, since deceased, the father of the petitioners Nos. 1-7 and husband of petitioner No. 8, was a co-sharer tenant with respect to the land in khaitan No. 235 in mouja Chandpur in the district of Malda. The opposite party No. 4, another co-sharer, on 5th of April, 1965, transferred. 223/4th acre of land out of the lands in the aforesaid khaitan to opposite party nos. 1-3, who are neither co-sharers nor raiyats possessing adjoining land of the said khaitan, for a consideration of a copy of Holi koran, under a deed described as 'Heba-bil-ewaz'. For the purpose of registration the said deed was valued at Rs. 1,000/-. The said Hazi Fakiruddin, thereafter, made an application on 11th of June, 1965, to the Revenue Officer praying pre-emption underSection 8(1) of the West Bengal Land Reforms Act (hereinafter referred to as 'the Act'), with respect to the above transferred land and deposited Rs. 1,000/- together with 10% interest. On 2nd of September, 1967, the Revenue Officer dismissed the said application upon the view that Heba-bil-ewaz is a gift for consideration, it may be a sale in reality but it is a gift in form. The pre-emptee took an appeal against the said order of the Revenue Officer. During the pendency of the said appeal, the said Hazi Fakiruddin died and the petitioners were substituted in place and stead of the deceased pre-emptee. The learned Munsif by his order dated 30th November, 1968, dismissed the petitioners' appeal holding that the transaction was a gift and as such, it was exempted from pre-emption under Sub-section (2) (b) of Section 8 of the Act. The petitioners, being aggrieved, against the said order of the learned Munsif, moved this Court on an application under Article 227 of the Constitution and obtained the present Rule.

3. Mr. Roy, the learned Advocate, appearing in support of the Rule, contended that the learned Munsif and the Revenue Officer were in error in holding that Heba-bil-ewaz was a gift, pure and simple; and, therefore, the transfer under such a deed, was exempted from pre-emption under the exception in Sub-section (2) (b) of Section 8 of the Act Mr. Roy submitted that Heba-bil-ewaz as understood in India, is nothing more than a sale as has been held by the Judicial Committee of the Privy Council as well as many of the decisions of this Court In support of his contentions Mr. Roy referred to a number of decisions.

4. It is submitted that a Heba-bil-ewaz, as distinguished from a Heba or a simple gift, is a gift for consideration. It is in reality a sale, and has all the incidents of a contract of sale. As a sale, it also gives rise to the right of pre-emption (Vide, Satyendra Nath Roy Choudhury v. Fulsom Bibi, 36 Cal WN 486 = (AIR 1932 Cal 625)). Where the property covered under a Haba-bil-ewaz is immovable and is of the value of Rs. 100/- and upward, it must be affected by a registered instrument as required under Section 54 of the Transfer of Property Act which relates to sales. (Vide, Abbasali v. Karim Bash, (1909) 13 Cal WN 160). The true characteristic of Heba-bil-ewaz has been explained in Saraffuddin Mohd. v. Mohinddin Mohd., ILR 54 Cal 754 (757) = (AIR 1927 Cal 808). It is observed at p. 766, that the transaction falsely termed in India as Heba-bil-ewaz is not governed by the Mohammedan Law of Heba, but is amenable to the General Law in India relating to the contracts and the Transfer of Property. The Judicial Committee of the Privy Council, in Ranee Khujooroonissa v. Mst. Roushen Jehan, (1876) 3 Ind App 291 (PC) observed at p. 308, that a consideration for Heba-bil-ewaz may be perfectly valid which is wholly inadequate in amount when compared with the thing given. Some of the cases have gone so far as to say that even a gift of a ring may be a sufficient consideration. In Jerafat Mondal v. Kamrezvan Bibi, ILR (1955) 1 Cal 144, it is held that a Heba-bil-ewaz should be regarded as a sale, whatever might be the value given in exchange of the property transfered. Koran Sarif, a string of bed or a carpet is a good consideration for a Heba-bil-ewaz. Accordingly, Mr. Roy submitted that a copy of Holt Koran in the instant case, is a good consideration for a Heba-bil-ewaz, it should be regarded as a sale and not a gift within the exception under Sub-section (2) (b) of Section 8 of the Act. Therefore, the Tribunals below illegally exercised its jurisdiction in rejecting the petitioners' application for pre-emption.

5. Mr. Sen, the learned Advocate appearing on behalf of the opposite party, contended that a copy of Koran or a car-pet might be a valid consideration for a Heba-bil-ewaz but unless the consideration was in the term of money, there could not be a sale, and when there was no sale, provisions of Section 8(1) of the Act are not attracted. In this connection Mr. Sen referred to a decision of the Supreme Court, Commr. of Income-tax, Andhra Pradesh v. Motors and General Stores (P.) Ltd., AIR 1968 SC 200, wherein the Supreme Court has laid down the essential elements in a transaction of sale. Mr. Sen further contended that Heba-bil-ewaz is a gift for a consideration. So it is a kind of gift. The exception provided in Section 8(2) is for a gift without any qualification or restriction. The expression 'any pecuniary consideration' occurring in Sub-section (e) of Section 26F (1) of the Bengal Tenancy Act includes and Connotes all consideration either in the shape of cash money or other materials having a pecuniary value but such expression is absent in Section 8(1) of the Act. The said section provides that on deposit of consideration money, an application for pre-emption can be made. So the word transfer' occurred in Section 8(1) of the Act must be a transfer for consideration of money and not a transfer for any other consideration.

6. In AIR 1968 SC 200, the Supreme Court held that the presence of money consideration is an essential element in a transaction of sale. If the consideration is not money but some other valuable consideration it may be an exchange or a Barter but not a sale.

7. The chief characteristic of a gift is, that it is a transfer without consideration. Gift is defined in Section 122 of the Transfer of Property Act, as 'the transfer of certain existing movable or immovable property made voluntarily and with-out consideration'. So, Heba-bil-ewaz is not a gift and therefore, in my opinion, it does not come within the exception under Sub-section (2) (b) of Section 8 of the Act.

8. The next point that remains for determination is, whether Heba-bil-ewaz is a sale. It is well settled that Heba-bil-ewaz is a sale when the consideration is money. In ILR 54 Cal 754 (757) = (AIR 1927 Cal 808) there was a deed by Mohammadan lady purporting to transfer certain property in consideration of donee's paying her a fixed annual sum of maintenance. It was held that the transaction was one of a sale and not a 'Heba' in any form. In another case referred to by Mr. Roy, 36 Cal WN 486 = (AIR 1932 Cal 625), Heba-bil-ewaz was executed in consideration of donee's executing in favour of the donor another deed by which the donee agreed to pay Rs. 5/- per month for donor's maintenance, the transaction was held to be a sale so as to attract the provisions of Section 26F of the Bengal Tenancy Act. The cases of pre-emption under Section 26F of the Bengal Tenancy Act may be distinguished from Section 8 of the Act, because 'any pecuniary consideration' occurring in that section might include consideration in land. But in the instant case, considering the nature of the transaction, it cannot be said that the said transaction was a sale because admittedly there was no consideration of money. In view of the above decision of the Supreme Court, the transaction is either an exchange or a Barter. A transfer by exchange is exempted under Sub-section (2) (a) of Section 8 of the Act. A Barter is also to give in exchange for some other commodities, it is another name of an exchange. Therefore, I hold that the petitioners' application for pre-emption is not maintainable under Section 8(1) of the Act as the transfer in the instant case is by an exchange under a Heba-bil-ewaz and it is within the exception provided for, in Sub-section (2) (a) of Section 8 of the Act.

9. In the result, this Rule is discharged.

10. There will be no order as to costs.


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