Law: Bengal Tenancy Act, 1885

Section: 26

Bengal Tenancy Act (VIII of 1885), S.26 F Hiba bil iwaz partly for payment of money and partly for love, care and affection bestowed upon donor by donee Not hiba bil iwaz as contemplated by section. The deed of gift by which A, the donor transferred his properties to K, his daughter, showed that K was living in her father's house with her husband at the request of her father A. It further showed that the donee K was the first child of the donor A and the donor was satisfied by the affection and care bestowed upon him by her. It further appeared that the donee gave Rs. 200.to the donor previously for his expenses to Mecca and that in consideration of the same and also being satisfied with the nursing and care of the donee, he gifted away the properties to her for her maintenance. On the question whether the gift made by A in favour of his daughter K was liable to be pre empted under section 26 F of the Bengal Tenancy Act, 1885: Held, that although section 26 F of the Bengal Tenancy Act, 1885 empowers one or more co sharer tenants of a holding to pre empt a transfer by gift including hiba bil iwaz yet in the above case it was not a hiba-bil iwaz as contemplated under section 26 F of the said Act. The donee, made a gift of Rs. 200 to her father the donor towards his passage expenses to Mecca without any consideration or iwaz. This was a gift pure and simple. Similarly, though in the deed of gift it was stated that the gift or "iwaz" was for consideration of Rs. 200 advanced to the donor by the donee and also for love and affection bestowed on him, it could not be said that this gift or exchange being involved in the contract of gift was its direct consideration. Love and affection cannot be measured in money and, as such, it was not possible to assess how much for love, care and affection was gifted away and how much for Rs. 200. The gift in question, therefore, was not wholly for consideration and was not a hiba¬b1l iwaz as contemplated by section 26 F of the Bengal Tenancy Act, 1885 and, as such, it could not be pre empted. THIS JUDGMENT DELIVERED BY: HASAN, JUSTICE---.-- This case involves a nice question of law which will be apparent from the facts stated…

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