1. In this suit the plaintiffs sued for recovery of certain land, which formerly belonged to one Asu Sikdar, on the ground that Asu Sikdar had given one quarter of the property to his wife, the 4th plaintiff in lieu of dower, and the remaining three-quarters to the first three plaintiffs by a hiba bil ewaz in consideration of a copy of the Koran. The Counts below have decreed the suit and the defendants appeal.
2. The first point taken is that the so-called hiba bil ewaz in favour of the first three plaintiffs is not a hiba bil ewaz at all, but a simple hiba or gift, and, therefore, was in effectual in the absence of any delivery of possession. We have, however, been shown no authority for holding that a copy of the Koran is not a valid consideration for a transfer of this nature and we think that the appellant's contention with reference to this document cannot be supported.
3. The next point taken is that the verbal gift to the 4th plaintiff is invalid. It is argued that it is either a gift or a sale or exchange. If it is a gift, it is invalid by reason of the fact that possession was not delivered. If it is a sale or exchange, it is invalid under the provisions of the Transfer of Property Act.
4. It appears to us that the so-called gift was a sale. According to the plaint it was made in consideration of a dower debt of Rs. 49, and on account of right of inheritance.' Such a transaction is usually described as a hiba bil ewaz with respect to which it is said in Baillie's Digest (p. 122, 2nd Ed.) that the transaction which goes by the name of hiba bil ewaz in India is not a proper hiba bil ewaz at all but a sale. A gift in lieu of dower is described as bye mokasa, which is also a sale. Under the Mahomedan Law these transactions do not require delivery of possession, but, if it be granted that they were sales, they must come within the provisions of Section 54 of the Transfer of Property Act. That they are sales seems to us to follow from the definition given in that section and besides the section the following authorities may be cited, namely, Macnaghten's Mahomedan Law, p. 217; Ghulam Mustafa v. Hurmat 2 A. 854; Suba Bibi v. Balgobind Dass 8 A. 178. If then this transaction was a sale, it could only be effected either by a registered instrument or by delivery, the property being less than Rs. 100 in value.
5. The Court below treats the transaction as a gift and holds that it comes within the operation of Section 129 of the Transfer of Property Act. That section lays down that nothing in the chapter of the Act which relates to gifts, shall affect any rule of Mahomedan Law. But that chapter could not in any case affect this transaction, inasmuch as it refers only to gifts without consideration, which the transaction under discussion certainly was not. The learned Subordinate Judge relies also on the decision in Mahomed Esuph Ravutan v. Pattamsa Ammal 23 M. 70 in which it was held, following Khajooroonissa v. Rowshan Jehan 2 C. 184; 26 W.R. 36; 3 I.A. 291 that in cases of this nature transfer of seizin is not necessary. But Khajooroonissa v. Rowshan Jehan 2 C. 184; 26 W.R. 36; 3 I.A. 291 was decided long before the Transfer of Property Act, and even then it was held that in the case of a deed of gift for consideration, there must be a bona fide intention on the part of the donor to divest himself in presenti of the property, and to confer it on the donee. The question whether the Transfer of Property Act was applicable was apparently not considered in Mahomed Esuph Ravutan v. Pattamsa Ammal 23 M. 70 nor is it stated whether the deed of gift in that case was registered or not.
6. In our opinion the verbal transfer in favour of the 4th plaintiff pleaded in this case was a sale, which being unregistered, could only be effected by delivery of possession. We do not think, however, that the learned Subordinate Judge had applied his mind to the question whether the 4th plaintiff obtained possession as is stated in the plaint. He appears to hold that, even assuming that possession did not pass, still the so-called gift was valid. The case must accordingly be remanded for the trial of the question whether possession was delivered. If it was, this appeal will wholly fail and the plaintiffs will be entitled to a decree. If it was not, the appeal will succeed with respect to a quarter of the property in suit. The respondents will be entitled to three-quarters of their costs in this appeal. The costs of this appeal with respect to one-quarter of the subject-matter will abide the result of the remand.