Law: Transfer of Property Act (IV of 1882)

Section: 54, 129

Transfer of Property Act (IV of 1882) Ss. 54 & 129-Muhammadan Law-Gift-Hiba-bil-ewaz-Transfer of immovable property (house) by husband to his wife in lieu of her dower-Such transfer comprises two distinct transactions viz. (i) gift of property by husband to his wife ; (ii) gift by wife of her right to recover dower from her husband-Whole transaction amounts to hiba bil-ewaz-Such transfer not required to be effectuated through registered instrument for it is neither "sale" under S. 54 of Transfer of Property Act, 1882 nor provisions of Ch. VII of the Act (relating to gifts) applicable by virtue of provision of S. 129 of the Act. Ordinarily in a transfer of immovable property by a Muslim husband to his wife in lieu of dower, there are two distinct gifts, one by each party to the other. The husband transfers by gift the property, while the wife makes the gift of her right to recover dower-in other words she makes a gift of the dower debt. The transaction is essentially hiba-bil-ewaz. This being the ordinary rule, it needs to be observed that there might be some exceptions, as visualised in some cases, depending upon peculiar circumstances thereof. A transfer by a Muslim husband in favour of his wife in lieu of her dower being essentially a gift, is not required, to be effected through a registered instrument. Further the provisions contained in Chapter VII of the Transfer of Property Act which inter alia require making of a gift of immovable property only by registered instrument, do not apply to the case of hiba-bil-ewaz by a Muslim-such gifts are excluded by virtue of section 129 which provides that nothing in Chapter V11 shall be deemed to affect any rule of Muslim Law. [p. 1404]C Durab Khan v. Mst. Sabjani P L D 1952 Lah. 421 ; Fazal Ahmad v. Mst. Rakh! P L D 1958 Lah. 218 ; Khuda Bakhsh and others v. Mst. Khudeja Bib! P L D 1968 Lah. 1001 ; Asghar Ali alias Zafar Alam and another v. Mst. Naseem Akhtar P L D 1969 Lah. 467; Gulzar Khan v. Mst. Shahzad Bibi and ,another P L D 1974 S C 204 ; Abdul Hamid v. M. Abdul Ghanl and others A I R 1934 Oudh 163 and Mst. Kalsum BIN v. Bashir Ahmad and others A I R 1937 All. 25 ref. . Dates of hearing : 25th…