JUDGMENT
Bhat, J.
1. First defendant in O.S. No. 47 of 1982 of the Sub Court, Tirur is the appellant herein.
2. Plaintiff and defendants 2 to 4 are the daughters and the first defendant is the son of late P. K. Pareekutty, who died on 27-8-1972. His wife died on 27-8-1984. The suit was
filed for recovery of possession of plaint A and B schedule immovable property and plaint C schedule movables on the allegation that the assets belonged to Pareekutty, that he gifted plaint A schedule property to the plaintiff and defendants 2 to 4 under Ext. A1 gift deed dt. 24-1-1972, on 2-4-1972 Pareekutty purported to execute Ext. B2 cancellation but that could not legally take effect and defendants unlawfully trespassed and reduced the property to their possession. Plaint B and C schedule assets are liable to be divided among the heirs of Pareekutty. Plaintiff also sought recovery of possession of A schedule property or alternatively partition of the same among the heirs.
3. First defendant filed written statement contending that Ext. A1 gift deed was not valid, that possession did not pass thereunder, that the gift was not accepted by the donee and it was vitiated by misrepresentation and undue influence, that it was also invalid as gift of musha, that the original gift deed was with the donor and the plaintiff illegally took custody of the gift deed after his death and that the gift deed was not acted upon. Pareekutty sent Ext. B3 notice to the plaintiff pointing out this state of affairs. In 1968 he orally entrusted the property to the first defendant to effect improvements. In July 1972 he orally gifted the property to his wife, who accepted the same and she in turn executed Ext. B1 gift deed dt. 7-12-1973 in favour of the first defendant and hence first defendant is in possession of the property. The other children of Pareekutty have no right in the plaint A and B schedule immovable properties. There were no movables as shown in schedule C to the plaint. Whatever movables existed were taken away by the plaintiff and defendants 2 to 4. He has effected improvements and hence is entitled to reservation in the event of partition.
4. First defendant subsequently filed an additional written statement alleging that Ext. A1 gift deed was brought about on account of misrepresentation of Pareekutty’s sons-in-law who advised him that on account of some amendments to the Kerala Land Reforms Act, 1963 there was every possibility of ceiling
provisions of the Act applying to him. Ext. At was sham and invalid. Pareekutty consulted religious experts for his own salvation since he had sold his wife’s jewels and used money for himself and the religious experts advised him that either he should pay off the debt or his wife should give it up. At that time she was in hospital. On 28-7-1972 at 4 p.m. Pareekutty made an oral gift of plaint A and B schedule properties to her in the presence of the two religious experts and handed over the title deeds to her.
5. Fifth defendant is the wife of first defendant. She contended that she purchased a part of A schedule property from first defendant under a sale deed dt. 29-3-1982. Thereafter she was in possession and she gifted the properties to the first defendant under Ext. B1.
6. The lower court held that Ext. A1 is not vitiated for any of the reasons alleged by the first defendant, that Ext. A1 is not invalid as being gift of Musha, that possession was not given under Ext. A1 and Ext. A1 gift did not take effect and hence Ext. A1 gift is not valid. The court also held that the alleged oral gift by Pareekutty to his wife was not true and hence Ext. B1 gift deed could not take effect and that properties in plaint schedules A and B and items 1 and 7 of plaint C schedule are available for partition. The court further held that first defendant is liable for mesne profits, the above properties are liable to be divided among all the children of Pareekutty and that the claim of fifth defendant is not proved. First defendant has not proved that he effected improvements and is not entitled to any reservation. Accordingly a preliminary decree for partition was passed declaring the shares of plaintiff and defendants 2 to 4 and directing first defendant to pay past and future mesne profits to plaintiff and directing costs coming out of the estate.
7. The trial court had that Ext. A1 was not acted upon and possession did not pass thereunder. This finding is in favour of the appellant and is not challenged by him. The trial court also held that the oral gift by
Pareekutty to his wife was not true and therefore Ext. B1 gift by Pareekutty’s wife to the first defendant cannot be accepted. This finding is seriously challenged by learned counsel for the appellant.
8. In the original written statement filed by the first defendant he did not give the particulars of the alleged oral gift by Pareekutty to his wife. The original written statement stated that Pareekutty entrusted the property to the first defendant in 1968 for the purpose of effecting improvements and considering his affection towards his wife and his liability to pay off the debt due to her, he orally gifted the properties at the end of July 1972 for the purpose of her livelihood and the gift was accepted by her. The date of the oral gift was not mentioned in the original written statement. The names of witnesses, if any, were not mentioned in the original written statement. These particulars were given only in the additional written statement filed long thereafter. It was in the additional written statement that he stated that Pareekutty had sold the jewels of his wife and used the sale proceeds and he was worried about his failure to discharge the liability and so he consulted religious experts, viz., D.Ws. 2 and 3, and they advised him that in order to attain salvation either his wife has to give up the debt or he has to discharge her liabilities or to give her property. As she was depending on him Pareekutty felt it was improper to ask her to give up the debt. So on 28-7-1972 at about 4 p. m. he orally gifted the properties to his wife in the presence of witnesses and she accepted it. No explanation is forthcoming as to why these particulars were not given in the original written statement. There can be no doubt that the particulars were the result of an afterthought. Appellant has no case that he was put in possession by virtue of Ext. B1. His specific case is that the property was entrusted to him even earlier by his father for effecting improvements. No evidence was forthcoming in support of this case. He would say that by virtue of oral entrustment he was in possession since 1968 and by virtue of the oral gift his mother came into possession. However, he has failed to produce any revenue receipt or building tax receipt for
the period prior to 1973. All the receipts produced are from the year 1973 onwards, i.e., long after the death of his father. There is also no document produced to show that after the alleged oral gift in 1972 Pareekutty’s wife was at any time in possession or paying land revenue or other public dues. In these circumstances the court below was justified in not accepting the case of oral gift by Pareekutty to his wife. If that be so, Ext. B1 gift deed could not have been executed and could not be regarded as having taken effect in the eye of law. It must therefore follow that the properties belonged to Pareekutty when he died and devolved on his legal representatives.
9. For another reason also we do not think the case of oral gift can be accepted. Oral gift is the foundation on which Ext. B1 rests. In the original written statement and in the additional written statement, oral transaction of July 1972 by Pareekutty in favour of his wife is described as gift. In other words, what is set up is a “hiba”. ‘Gift’ as defined in Section 122 of the Transfer of Property Act is the transfer of existing movable or immovable property made voluntarily and without consideration, by one person to another and accepted by or on behalf of the donee during the lifetime of the donor. Section 123 requires that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by two witnesses. Under Section 17 of the Registration Act gift of immovable property worth over Rs. 100/- is required to be by registered instrument. Section 129 of the Transfer of Property Act states, inter alia, that nothing in the chapter shall be deemed to affect any rule of Mohammedan Law. Mohammedan Law permits oral gift of immovable property, irrespective of value of the property. Hence Section 123 of the Transfer of Property Act about the requirement of Registered Instrument does not apply to gifts covered by Mohammedan Law. Nevertheless Section 17 of the Registration Act applies to gifts dealt with in Mohammedan Law if the gift is granted not orally but in writing and if relates to
immovable property worth Rs. 100/- or above, the document is compulsorily registrable.
10. Hiba or gift under Mohammedan Law is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter. It is essential to the validity of a hiba that there should be (i) a declaration of the gift by the donor, (ii) acceptance of the gift expressed or implied by or on behalf of the donee, and (iii) delivery of possession of the subject matter of gift by the donor to the donee. Hiba-bil-iwaz or gift with exchange as distinguished from a hiba or simple gift is a gift for consideration. It is in reality a sale and has all the incidents of a contract sale. In hiba-bil-iwas there must be actual payment of consideration (iwaz) on the part of the donee and bona fide intention on the part of the donor to divest himself in preasenti of the property and to confer it upon the donee.
11. In Baillees’ Digest of Mohammedan Law, it is stated :–
“Hiba-bil-iwaz means, literally, gift for an exchange and it is of two kinds, according as ‘iwaz’ or exchange is, or is not, stipulated for at the time of the gift. In both kinds there are two distinct acts; first, the original gift, and, second, the ‘iwaz’ or exchange. But in the hiba-bil-iwaz of India, there is only one act; the ‘iwaz’ or exchange being involved in the contract of gift as its’ direct consideration…….
The transaction, which goes by the name of hiba-bil-iwaz in India is, therefore, in reality not a proper hiba-bil-iwaz of either kind, but a sale and has all the incidents of the latter contract.”
12. The concensus of the judicial opinion is that hiba-bil-iwaz in India is not a gift, but is a transaction in the nature of sale; and if it relates to immovable property value of Rs. 100/- or onwards it can only be by a registered instrument as provided under Section 54 of the Transfer of Property Act.
13. One of the earlier cases on the paint
is Abbas Ali v. Karim Baksh (1909) 13 Cal
WN 160. That was a case of an oral gift by the
husband in favour of the wife in satisfaction
of her dower debt and share she would have
on his death. The Calcutta High Court held that the transaction was hiba-bil-iwaz of India and amounted to sale governed by Section 54 of the Transfer of Property Act and was not a pure hiba or gift. This decision was followed by later decisions of the Calcutta High Court. The same view was taken by the Patna High Court, Lahore High Court, Nagpur and Madras High Courts. See Mohammed Usman v. Amir Main, AIR 1949 Pat 237, Fateh Ali Shah v. Mahomed Baksh, AIR 1928 Lah 516, Zainab Bi v. Jamalkhan, AIR 1951 Nag 428: Khamrunissa v. Hazarath Sahib (1911) 21 Mad. LJ 958 and Masum Vali Saheb v. Illuri Modih Sahib, AIR 1952 Mad 671. The Allahabad High Court at an earlier stage took the same view. See Fida Ali v. Muzaffar Ali (1883) ILR 5 (sic) 65. However, later a contrary view was taken in Mt. Kulsum Bibi v. Shiam Sunder Lal, AIR 1936 All 600. However this decision was overruled by a Full Bench of the Allahabad High Court in Ghulam Abbas v. Razia Begum, AIR 1951 All 86 (FB). With great respect we agree with the view taken in the above decision.
14. In the present case the specific case of the first defendant is that Pareekutty granted oral gift in favour of his wife in discharge of the money owed to her as representing the price of her jewels sold and appropriated by him. In other words, the alleged oral gift is a transaction for consideration and has to be treated as hiba-bil-iwaz. It must follow that the alleged gift in this case is not a pure and simple hiba but a hiba-bil-iwaz, that is a gift for consideration and amounts to sale and since there is no dispute that the value of the property at the relevant time exceeded Rs. 100/- it could have been only a registered instrument. For this reason also the oral gift must fail and the consequent gift Ext. B3 must also fail.
15. No other contentions have been urged before us.
16. We find no ground to interfere and accordingly dismiss the appeal.