Payment to wife for liquidation of dower debt is not to be clubbed in the hands of husband

By | February 8, 2016

Issue

Whether  the property situated at Abid Road, Hyderabad, standing in the name of the wife of late Shri A.K Babu Khan can be included in the assessment of late Shri A.K. Babu Khan, which was given away by him to his wife in satisfaction of dower (Meher) debt in the year 1928?”

Held

No Clubbing can be done.

HIGH COURT OF ANDHRA PRADESH (FULL BENCH)

Ghiasuddin Babu Khan

v.

Commissioner of Income-tax

  1. P. JEEVAN REDDY, G. RAMANUJULU NAIDU AND Y. V. ANJANEYULU, JJ.

REFERRED CASE NOS. 108 OF 1977 AND 160 OF 1978

APRIL 22, 1985

Habeeb Ansari and K.G. Kannabhiran for the Applicant. M. Suryanarayana Moorthy and A.V. Krishna Koundinya for the Respondent.

JUDGMENT

Reddy, J. – The Tribunal, Hyderabad, referred the following question for the opinion of this Court, under section 256(2) of the Income-tax Act, 1961 (‘the Act’):

“Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the property situated at Abid Road, Hyderabad, standing in the name of the wife of late Shri A.K Babu Khan can be included in the assessment of late Shri A.K. Babu Khan, which was given away by him to his wife in satisfaction of dower (Meher) debt in the year 1928?”

  1. Late Babu Khan married Smt. Shahzadi Begum in or about 1927. In 1928, he transferred the property concerned herein to his wife in lieu of the deferred dower. Babu Khan died in October, 1968. For the assessment years 1967-68 to 1969-70, a question arose in the assessment proceedings under the Act, whether the income from the said property should be included in the income of Babu Khan. The assessee’s contention was that, inasmuch as the said property was transferred to his wife as far back as 1928 in lieu of ‘deferred dower’,i.e., for adequate consideration, the income therefrom cannot be included in his income under section 64 of the Act. This was rejected by the ITO, but accepted by the AAC in appeal. However, when the matter came to the Tribunal, the Tribunal rejected the assessee’s contention, following the decision of this Court inCWT v. Khan Saheb Dost Mohd. Alladin [1973] 91 ITR 179 . The assessee then obtained this reference under section 256(2).’

Since there was no specific finding that the said property was transferred to the assessee’s wife in 1928, either in the order of the ITO or the AAC or the Tribunal, a Bench of this Court called upon the Tribunal to submit a supplemental statement on the following aspect:

“Whether the property in question, i.e., the eighth item, was transferred by Shri A.K. Babu Khan to his wife in lieu of deferred dower, and if so, what are the circumstances in which the said transfer was made?”

  1. On a consideration of the material placed before it by the parties, the Tribunal recorded a finding to the effect that though there is no registered document evidencing the transfer, the transfer indeed took place in the year 1928—about one year after the marriage—in lieu of deferred dower. The Tribunal found that the said property is the property of Mrs. Babu Khan. This Court accepted the finding. The question then arose whether the said transfer was valid and competent and whether it can be said that the transfer was made for adequate consideration within the meaning of clause (iv)of sub-section (1) of section 64 of the Act [at the relevant time, clause (iii)]- It was contended by the revenue, relying upon the decision of this Court in Khan Saheb Dost Mohd. Alladin’s case (supra) that it is not open to a Muslim husband to pay the deferred dower to his wife at any point of time earlier than the dissolution of the marriage. It was contended that a deferred dower is payable only in the event of the dissolution of marriage, either by death or divorce, and not earlier. If so, it was argued, it was not open to Babu Khan to transfer the said property to his wife in lieu of defer red dower, one year after the marriage, i.e., long before the dissolution of their marriage; the deferred dower became payable only on the death of Babu Khan.
  2. On the other hand, it was contended by Shri Habeeb Ansari, the learned counsel for the assessee, that the decision of this Court relied upon by the revenue does not represent the correct position in Muslim law and that a contrary view has consistently been taken by the Allahabad and Nagpur High Courts, which decisions were not brought to the notice of the Bench. He, therefore, submitted that the aforesaid Bench decision requires reconsideration.
  3. Since the Bench which initially heard this reference was inclined to disagree with the earlier Bench decision of this Court, the matter was referred to a Full Bench.

‘Meher’ or ‘dower’ is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. In Mulla’s Principles of Mahomedan Law, Eighteenth edn., the following statement occurs, after stating the above proposition:

“The word consideration is not used in the sense in which the word is used in the Contract Act. Under Mahomedan law dower is an obligation imposed upon the husband as a mark of respect to the wife. Mahmood, J., in Abdul Kadir v. Salima [1886] ILR 8 All. 149 said that it had been compared to the price in a contract of sale because marriage is a civil contract and sale is a typical contract to which Mahomedan jurists are accustomed to refer by way of analogy. If dower were the bride price a post-nuptial agreement to pay dower would be void for want of consideration, but such an agreement is valid and enforceable.

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The amount of dower is usually split into two parts, one called ‘prompt’, which is payable on demand, and the other called ‘deferred’, which is payable on dissolution of marriage by death or divorce.

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The dower ranks as a debt, and the widow is entitled, along with other creditors of her deceased husband, to have it satisfied on his death out of his estate. Her right, however, is no greater than that of any other unsecured creditor, except that she has a right of retention to the extent mentioned in section 296 below. She is not entitled to any charge on her husband’s property, though such a charge may be created by agreement.” (pp. 308-315)

  1. To the same effect is the statement of law in paragraph No. 92 of Tyabji’sMuhammadan Law, Third edn. In paragraph No. 93, the learned author says that, under Hanafi and Shia Ismaili law, the wife is entitled to claim Meher from her husband, even though she has expressly contracted not to claim it. In paragraph No. 99, the learned author states further:

“At any time during the continuance of the marriage, an addition may be made to the meher; the husband’s promise to add to the meher if accepted by the wife, becomes incorporated into the marriage contract, and bind him. …”

  1. Again in paragraph No. 100, it is stated:

“The wife may validly agree to a reduction of her meher, or make a gift (or remission) of the whole of it to her husband, or after his death to his heirs; provided that she voluntarily and deliberately gives up her right. Such remission may be made conditionally, e.g., in lieu of an annuity, and if purported to be made by a widow to a deceased husband or his heirs, consists of a release of the claim, which under Muhammadan law does not require to be accepted by the heirs of the husband.”

  1. In Ameer Ali’s Treaties onMahommedan Law, Vol. II, Third edn., the following statement of law occurs:

“…As there is nothing in the Koran or in the traditions tending to show that the integral payment of the dower prior to consummation is obligatory in law, the later jurisconsults, says M. Sautayra, have held that a portion of the meher should be considered payable at once or on demand, and the remainder on the dissolution of the contract, whether by divorce or the death of either of the parties. The portion which is payable immediately, is called the mahr-i-muwajjal ‘prompt’ or ‘exigible’, and a wife can refuse to enter the conjugal domicile until the payment of the prompt portion of the dower. The other portion is called mahr-i-muwajjal ‘deferred dower’, which does not become due until the dissolution of the contract. It is customary in India to fix half the dower as prompt and the remaining moiety as deferred or ‘postponed’; but the parties are entitled to make any other stipulation as they choose. For example, they may allow the whole amount to remain unpaid until the death of either the husband or the wife. Generally speaking, among the Mussulmans of India, the deferred dower is a penal sum, which is allowed to remain unpaid with the object of compelling the husband to fulfil the terms of the marriage contract in their entirety. …” (p. 482)

It is stated:

“It is also lawful to stipulate that the husband should pay as much as he can at once, and the remainder at some fixed time later.” (p. 483)

  1. It is, thus, clear that dower is treated as a sum agreed in consideration of the marriage. In Muslim law, marriage is a civil contract; dower is a matter of agreement between the parties; it can be agreed upon at the time of marriage; it can also be agreed upon after the marriage; it can be enhanced after the marriage by mutual consent, or relinquished, as the case may be, by the wife. It is open to the parties to agree that the dower fixed shall be partly prompt, and partly deferred; they can agree upon the quantum which is to be treated as prompt, and that which is to be treated as deferred. It is open to the parties to agree that the whole of the dower shall be prompt; it is also open to them to agree that only a certain small amount shall be prompt and the major portion shall be ‘deferred’. In short, it is a matter of mutual agreement—the law only says that there shall be dower, leaving the rest to be agreed upon between the parties. For instance, it is open to the parties to a marriage to agree that the whole of the dower amount agreed upon shall be ‘prompt’ dower. If so, we fail to see any disability or bar to the parties agreeing that the amount agreed upon as deferred dower at the time of marriage shall be treated as prompt dower at any point of time after the marriage, before the deferred dower becomes actually due as per the initial agreement. No textual prohibition to the said effect is brought to our notice, nor was any cited in the Bench decision relied upon by the revenue. It is true that, where a particular amount is agreed upon as deferred dower, the wife cannot claim a unilateral right to call upon the husband to pay the same before the happening of the stipulated event; but, if she chooses to make a demand, we see no bar, in principle, to the husband agreeing to it. Indeed, even without such a demand, the husband can choose to pay the deferred dower either during his lifetime, or before the marriage is dissolved bydivorce. A husband may be of the opinion that, instead of driving his wife, after his death, to proceed to claim and realise her dower from his estate after his death, it would be more convenient and appropriate to pay the said sum even during his own lifetime and, thus, save the wife from the botheration, or the necessity, of realising it from out of his estate. The matter can be looked at from another angle too bearing in mind that it is essentially a matter of agreement between the parties, which can also be varied later by mutual agreement. Take a case, where A takes a loan from B agreeing to repay it after the expiry of, say, one year. In such a case, it will not be open to B to demand the payment of the amount before the expiry of one year. But, nothing prevents A from offering to pay the said debt before the expiry of one year and if he so offers, it is also open to B to receive and accept the same. No one can say in such a case—nor does the law say—that, since the period of one year has not expired, B cannot accept the amount and that both parties should necessarily wait for the expiry of one year to pay and receive the amount—unless, of course, there is a law to that effect or the initial agreement specifically says so. It should be remembered that the deferred dower is in the nature of a debt—an unsecured debt. The husband is in the nature of a debtor, and the wife is in the nature of a creditor. The deferred dower is payable, ordinarily, on the dissolution of marriage by death or divorce; but, there is nothing in Muslim law to prevent a husband from choosing to pay the said debt before the happening of the stipulated event, and the wife from accepting it, though it may be that the wife may not be entitled to claim or enforce such a claim before the happening of the stipulated event. This view is supported by the following decisions:

In Suba Bibi v. Balgobind Das [1886] ILR 8 All. 178, it was held that a deferred dower debt can be treated as ‘prompt’ by the husband. Again, inSeth Nemichand v. Mt. Maluk Begum [1910] 5 IC 316, a Bench of the Allahabad High Court held that a deferred dower can form a valid consideration for the transfer of property during the lifetime of the husband who has not divorced his wife. It was held that while a wife is not entitled as of right to demand, the payment of her deferred dower, the husband is entitled, if he so pleases, to pay his wife her dower before it is due, or to discharge or satisfy his obligation in any other legal way. To the same effect is another decision of the Allahabad High Court in Khodija Bibi v. Shah Mohammad Zahir Alam [1901] AWN 64. The above three decisions of the Allahabad High Court were affirmed and followed by a Bench of that Court in Mangat Rai Hira Lal v. Mt. Sakina Begam AIR 1934 All. 441. Accepting the view expressed in the aforesaid decisions, the Bench held:

“… We accept the contention that a wife is not entitled as of right to demand payment of her deferred dower debt and cannot enforce such a claim; but if she does demand it and if the husband thinks fit to pay it or to make a transfer of property in her favour in lieu thereof, he is legally competent to do so and such transfer will be valid.” (p. 442)

  1. InBibi Janbi v. Abbas All Fateh Ali Musalman AIR 1941 Nag. 167, Vivian Bose, J., pointed out that the interest of the wife in deferred dower is a vested right and not a contingent one. He held that the said right is not liable to be displaced by the happening of any event, not even her death, because in such a case, her heirs can claim the money.

To the same effect is the decision of the Nagpur High Court in Kulsambi v. Bilankhan AIR 1929 Nag. 121.

  1. The above decisions clearly establish that it is open to a husband to accelerate the date or time of payment of a deferred dower, though the wife has no right as such to compel him to do so. They also establish that the right of the wife to deferred dower is not a contingent right, but a vested right. The event which makes the deferred dower payable,viz., the dissolution of marriage either by death or divorce, is a definite and certain event, and the said right cannot, therefore, be called a contingent right. Even if the wife dies before realising the dower debt, her heirs can claim and recover the same. That the nature of the said right is not contingent but vested, is also evident from the following passage from G.W. Paton’s A Text Book of Jurisprudence, Third edn.:

“Every right arises from a title. When all the investitive facts which are necessary to create the right have occurred, the right is vested; when part of the investitive facts have occurred, the right is contingent until the happening of all the facts on which the title depends. This is a simple distinction. But, unfortunately, the word ‘vested’ is used in two senses. Firstly, an interest may be vested in possession, when there is a right to present enjoyment, e.g., when I own and occupy blackacre. But an interest may be vested, even where it does not carry a right to immediate possession, if it does confer a fixed right of taking possession in the future. Since all the investitive facts which are necessary to create the right have occurred, the right is vested in interest, even though actual enjoyment be postponed to a definite time in the future. If a grant is made to B in fee simple, he takes a vested right in possession.” (p. 269)

  1. Now we shall refer to the decisions relied upon for the revenue which, according to the learned counsel for the department, take a contrary-view. Reliance is first placed upon the decision inMirza Ali v. Mt. Qadari Khanam AIR 1919 Lahore 139. In that case, a learned single Judge held that, in view of the proviso to section 24 of the Provincial Insolvency Act, 1907, the amount of deferred dower cannot be entered in the schedule of debts of the insolvent (husband). It is relevant to notice the facts of the case. The insolvent (husband) entered only the amount of prompt dower in the list of debts submitted by him. His wife, however, got the full amount of both prompt, and deferred dower, entered in the schedule, on the reasoning that an unconditional order of discharge will release the insolvent from any amount due as deferred dower under section 45(2) of the Provincial Insolvency Act. The learned Judge, while agreeing that the said consequence does indeed follow, observed:

“But the remedy against any such injustice is simple. The Court should have directed the wife to make an application herself or through the receiver under section 26(2) of the Act for the expunging of the amount of the deferred dower. It is moreover most doubtful whether the debt should have been originally included in view of the proviso to section 24.

The value of the deferred dower at the time when the amount was entered in the schedule was incapable of being fairly estimated, as it was possible for it to become payable after a short or long period or perhaps, never to become payable in the event of the wife predeceasing her husband and leaving no heir. If this debt is expunged from the schedule, no disadvantage will accrue to the wife unless of course her husband dies eventually in penniless condition….” (p. 139)

  1. It is clear from the above observations that while the wife claimed the immediate payment of deferred dower before it actually became due, the husband had not agreed thereto and this makes all the difference to the principle. We are, therefore, unable to see how this decision runs counter to the principle enunciated by us above or to the decisions cited hereinbefore.
  2. The next decision relied upon is the decision of a Division Bench of the Allahabad High Court inSughra Bibi v. Gaya Prasad AIR 1930 All. 580. This case too arose under the Provincial Insolvency Act. The husband was adjudged an insolvent on 3-12-1927. Prior to that, on 21-2-1927, he had transferred all his property to his wife in lieu of her dower debt. The said transfer was set aside as fraudulent. Subsequently, the wife applied to have her name entered in the ‘schedule of creditors, for the total amount of her deferred dower debt which was disallowed by the Courts below. The matter then came to the High Court. The following observations of the Bench are apposite and are relied upon for the revenue:

“… The sole question before us is whether a Mahommedan wife is entitled to be entered in the schedule of creditors of her insolvent husband for the amount of her deferred dower debt. Deferred dower debt, as stated in paragraph 46 of Wilson’s Mahommedan Law (edition IV), is payable only on the termination of the marriage by death or divorce. Neither of these contingencies has yet taken place, and it is not possible to say whether the husband will or will not divorce his wife, or whether he will or will not predecease his wife; nor is it possible to say at what date the husband would predecease or divorce his wife, if either of the two contingencies did take place. Accordingly it is not possible for the insolvency Court to estimate what would be the present value of the deferred dower debt of Rs. 5,000 which was to be paid if either of those contingencies took place. Section 33, sub-section (1) of the Provincial Insolvency Act, states:

‘Provided that, if, in the opinion of the Court, the value of any debt is incapable of being fairly estimated, the Court may make an order to that effect, and thereupon the debt shall not be included in the schedule.’

We consider that the present deferred dower debt comes within that proviso. It is not possible for the insolvency Court to arrive at any fair estimate of the value of this deferred dower debt in comparison with the debts of the other creditors who are entered in the schedule. …” (p. 580)

  1. Undoubtedly, this decision goes to support the revenue’s contention that a deferred dower is payable only on the dissolution of the marriage, but not at any anterior point of time. But, in our opinion, this decision has to be read in the context of the proviso to section 33(1) of the Insolvency Act, which is evident from the fact that, when the appellant’s wife relied upon the d decision inBalgobind Das’s case (supra)the Bench observed:

“…that ruling does not apply to insolvency cases.”

  1. They did not disagree with the principle of the said decision, but only stated that the said principle has no application to insolvency cases. The said decision cannot, therefore, be construed as running counter to the principle of the decision inBalgobind Das’s case (supra) or the other earlier decisions of the same Court, referred to above. Even otherwise, we are not prepared to agree with the ratio of this decision, because it runs counter to the essential nature of the dower, viz., that it is really and ultimately a matter of agreement between the parties.
  2. Now, we come to the Bench decision of this Court inKhan Saheb Dost Mohd. Alladin’s case (supraThe case arose under the Wealth- tax Act. At the time of the marriage, the assessee had stipulated certain amount as deferred dower. The agreement provided that the said dower shall be payable on the dissolution of marriage, either by death or by operation of law, and further that “it shall be optional with the husband to pay and discharge the said Meher earlier or at any time hereafter”. In pursuance of the said stipulation, the husband transferred certain properties in favour of his wife during his lifetime, i.e., during the subsistence of the marriage. In his wealth-tax return, the assessee did not include the property transferred to his wife, which was objected to by the department. According to section 4(1)(a)(i ) of the Wealth-tax Act, 1957 the value of the assets held by the spouse of the individual ‘to whom such assets have been transferred by the individual, directly or indirectly, otherwise than for adequate consideration, or in connection with an agreement to live apart….’ was includible. The question thus arose, whether the transfer of the property effected by the assessee in favour of his wife in lieu of deferred dower, is a transfer for adequate consideration or not. The revenue’s contention was that, inasmuch as, according to Muslim law, deferred dower is payable only on the happening of the stipulated event, viz.,dissolution of marriage by death or divorce, it is not a debt in praesenti and, hence, the transfer effected In lieu of such a debt cannot be called an adequate consideration. For examining this contention, the Bench referred to the concept of dower in Muslim law at pages 187 and 188 which is substantially the same as set out in the texts referred to by us hereinbefore. After setting out the law on the subject, the Bench proceeded to observe thus:

“…Deferred dower cannot be converted into prompt dower by making the wife demanding the same as it is not a debt in praesenti. Deferred dower is payable on the dissolution of marriage or the happening of some event specified in the sianama or as agreed upon by the parties. Normally, the Muslims in India treat deferred dower as a penal sum permitted to remain unpaid with the object of compelling the husband to live together and fulfil the terms of the marriage contract in their entirety. See Mahommedan Law by Ameer Ali, 3rd edn., Vol. II, p. 482. In the case of deferred dower, the husband is not liable to pay the same until the dissolution of the marriage by death or divorce or on the happening of the specified event. …” (p. 188)

  1. The Bench then referred to the decision of the Supreme Court inKesoram Industries & Cotton Mills Ltd. v. CWT [1966] 59 ITR 767 , and to the definition of ‘debt’ set out therein. The following extract from the judgment of the Supreme Court was referred to:

“There is no conflict on the definition of the word ‘debt’. All the decisions agree that the meaning of the expression ‘debt’ may take colour from the provisions of the concerned Act: it may have different shades of meaning. But, the following definition is unanimously accepted:

‘A debt is a sum of money which is now payable or will become payable in future by reason of a present obligation: debitum in praesenti, solven-dum in futuro.'” (p. 189)

  1. The Bench then proceeded to observe that a contingent debt is not a debtin praesenti or in futuro till the contingency occurred, and also that a contingent debt cannot be converted into a debt in praesenti until the stipulated event happens. They drew upon the analogy of impermissibility of a debt in praesenti not being allowed to be converted into a contingent one on the fulfilment of a subsequent event. From the said principle, the Bench drew the following conclusion:

“… When once it was agreed that the dower shall become due on dissolution of the marriage, the parties have no option to pay or demand payment, as the case may be, in respect of the said dower prior to the dissolution of marriage. Hence, the husband is not bound or obliged in law to pay the amount of the original or enhanced dower during the subsistence of the marriage. Nor can the wife demand the payment of the same before the dissolution of marriage either by death or by law….

The liability in the instant case is contingent on the specified subsequent event, i.e., the dissolution of marriage by death of either of the parties, or by divorce. Until and unless such contingency happens, the dower,’ in our opinion, must be held to be not due and payable by the assessees, nor can their wives demand and claim for recovery of the same until the dissolution of their marriages.

…the parties are not competent under their personal law to con- vert the deferred dower into a prompt one either by their conduct or by executing any documents. That apart, the deferred dower would not become a debt owed by the assessee during the subsistence of the marriage …. The assessees either of their volition or with the consent of their wives are not entitled to make such a provision in the deeds executed by them. Such provision will be illegal and not binding on the parties and much less on the revenue….” (pp. 190-192)

  1. With great respect to the learned Judges who decided the case, we are unable to agree with the said view. Even according to the concept of dower in Muslim law, as set out by the Bench, it is primarily and wholly a matter of agreement between the parties. Once it is a matter of agreement, it must follow that the stipulations once agreed upon can always be varied by mutual agreement, unless there is some textual prohibition in Muslim’ law. No such prohibition is found in any of the text-books, nor is any such referred to in the said decision. The Bench seems to have laid great stress upon the statement in Ameer Ali’sMahommedan Law that, normally, the Muslims in India treat the deferred dower as a penal sum ‘which is allowed to remain unpaid with the object of compelling the husband to fulfil the terms of the marriage contract in their entirety’. But, if it is open to the parties, even at the time of the marriage, to agree that the entire dower agreed upon shall be prompt dower, and where it is equally open to them to agree upon the amount of dower even subsequent to the marriage, or to enhance it, or to reduce or relinquish it, it is un understandable why a particular portion of the dower agreed upon at a point of time (ordinarily, at the time of the marriage) as deferred dower cannot subsequently be converted into prompt dower? At any rate, there is no reason why the parties should be prevented from paying and receiving the same before the stipulated event. It is one thing to say that a wife cannot demand the payment of deferred dower before the happening of the stipulated event; it is another thing to say that a husband cannot honour such a debt before it becomes actually due. As observed by us hereinbefore, a Muslim husband may think it more appropriate to pay the deferred dower to his wife even during his own lifetime, without putting the wife to the necessity of realising it out of his estate, after his death. He may still live with his wife after paying her deferred dower. We are equally unable to agree with the Bench that the deferred dower is a contingent debt. The event stipulated, viz., the dissolution of the marriage by death or divorce, is not a contingency, but a definite, certain event, which is bound to happen. Even if the wife predeceases, her heirs can claim and recover it. We are equally of the opinion that the Bench did not correctly appreciate the statement of law in Kesoram Industries & Cotton Mills Ltd.’s case (supra)The definition set out by the Supreme Court is to the following effect:

“A debt is a sum of money which is now payable or will become payable in future by reason of a present obligation.”

  1. The Bench understood the expression ‘present obligation’ as referring to the happening of the stipulated event. We respectfully disagree. ‘Present obligation’—applying the said definition to the facts of the case before us—arises on the day of the marriage, and cannot be understood as referring to the happening of the stipulated event. The obligation to pay defer- red ower arises on the day of marriage, though its payment is postponed to the happening of a stipulated event, which is a definite and certain event, and not a contingent one. That the deferred dower is not a contingent debt is also the view of Vivian Bose, J. inBibi Janbi’s case (supra)The statement of law from G.W. Paton’s Jurispru- dence also goes to show that such a debt cannot be called a contin- gent debt. In such a situation, we are unable to agree that it is not open to a Muslim husband to choose to pay the deferred dower at any point of time earlier than the happening of the stipulated event. It is, no doubt, not a debt in praesenti,ordinarily speaking ; but, if the husband chooses to pay it at once, and pays it, it becomes a debt in praesenti.
  2. Mr. M. S. N. Murthy, the learned standing counsel for the revenue, contended that, if we take such a view, it would open up a new avenue of mischief. He contended that it would now be open to a Muslim husband to transfer all his properties to his wife in lieu of her deferred dower, and thereby defeat the other creditors. We are unable to appreciate the said contention. Deferred dower is an unsecured debt. The secured creditors will not be prejudicially affected by any transfer effected by the husband in favour of his wife, in lieu of deferred dower. So far as the unsecured creditors are concerned, it is always open to them to impugn such a transfer according to the ordinary law of the land. The situation would be no different than where a Muslim prefers one of his unsecured creditors and transfers all his properties to such creditor; the remedies which the other unsecured creditors have in such a situation, would equally be available in case of a transfer in favour of a wife in lieu of deferred dower; no more, no less. Therefore, the apprehension expressed by the learned counsel appears to be unfounded. Indeed, the two Allahabad High Court decisions referred to above,i.e., Khodija Bibi v. Shah Mohammed Zahir Alam and Seth Nemichand v. Ml. Maluk Begum are cases of transfer of property by a Muslim husband to his wife in lieu of deferred dower.
  3. Mr. M. Suryanarayana Murthy then contended that theview taken by the Bench in Khan Saheb Dost Mohd. Alladin’s case (supra) has also been approved by a Bench of the Bombay High Court in CIT v. Vivian Bose [1979] 118 ITR 989 . We have seen the said decision. The only observation in our Bench judgment, which was quoted with approval by the Bombay High Court, is the one dealing with the meaning of the expression ‘adequate consideration’ occurring in section 4(1)(a)( i). The opinion of this Court that adequate consideration is distinct from good consideration (natural love and affection) and that ‘adequate consideration’ means valuable consideration which can be measured or tested on the basis of the money’s worth, was accepted as representing the correct position. Indeed, the case before the Bombay High Court did not pertain to Muslims, nor did they deal with the question of dower, or deferred dower, at all.
  4. For the aforesaid reasons, we answer the question referred to us in the negative,i.e., in favour of the assessee and against the revenue. In the circumstances, we make no order as to costs.

Reference Case No. 160 of 1978:

  1. For the reasons recorded by us in Reference Case No. 108 of 1977, we answer the question referred to us in this referred case in the affirmative,i.e., we hold that the payment of Rs. 50,000 by the assessee to his wife towards the liquidation of Meher debt due by him, is for adequate consideration within the meaning of section 64(1)(iv). Our answer is in favour of the assessee and against the revenue. No costs.

 

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