Hiba-bil-iwaz was executed with the fraudulent intent

Mosammat Salema Khatun Bibi vs Sk. Abdul Matleb & Anr

Calcutta High Court

(Appellete Side)

Decided on: 19 August, 2021

The case S.A. 411 of 2016 – Mosammat Salema Khatun Bibi vs. Sk. Abdul Matleb & Anr. revolves around a dispute related to the cancellation of a hiba-bil-iwaz deed (Islamic gift deed with consideration). Let’s break down the case and the legal issues involved.

Background of the Case:

Plaintiff (Appellant): Mosammat Salema Khatun Bibi.
Defendants (Respondents): Sk. Abdul Matleb (Defendant 1) and his wife, Defendant 2.

The appellant’s case was that the hiba-bil-iwaz executed by Defendant 1 in favor of Defendant 2 on 31st May 1974 was fraudulent and should be cancelled. The appellant’s contention was that the consideration for the hiba-bil-iwaz was the deferred payment of the dower (the dowry), which was allegedly paid immediately. The appellant argued that the hiba-bil-iwaz was executed to deprive her of the benefit of a subsequent sale deed executed in her favor on 26th June 1974 and registered on 28th June 1974.

Appellant’s Argument:

The hiba-bil-iwaz was executed with the fraudulent intent to deprive the appellant from acquiring a good title under the sale deed.
She argued that cancellation of the hiba-bil-iwaz would allow her to have a valid title to the property under the sale deed.

Legal Points Considered by the Court:

Section 31 of the Specific Relief Act, 1963: This section allows the cancellation of a written instrument if it is void or voidable and the person seeking cancellation has a reasonable apprehension that the instrument, if left outstanding, may cause serious injury to them.
Findings of the Court:
- The Court noted that the hiba-bil-iwaz was executed and registered.
- Despite this, the appellant went ahead and purchased the subject property without conducting a proper search and at a low consideration of Rs. 1999/-.
- The trial Court found that the hiba-bil-iwaz had been accepted by Defendant 2, who took possession of the property.
- The appellant failed to prove that the hiba-bil-iwaz was void or voidable against her.
Absence of Fraudulent Circumstances: The Court observed that while the appellant claimed fraud was committed by the defendants, it did not make the hiba-bil-iwaz void or voidable in law. In fact, there was no substantial evidence to support the claim that the hiba-bil-iwaz was executed to invalidate the subsequent sale deed.
Appellant’s Failure to Prove Case: The Court noted that:
- The appellant failed to depose herself in the case, despite being part of the negotiations for the sale.
- The attesting witnesses to the sale deed also did not testify.
- There were discrepancies in the appellant’s claim, including the fact that Defendant 1 had admitted to selling a different property to the appellant.
No Question of Law: The High Court found that no substantial question of law arose from the appeal. It held that both lower courts had already properly evaluated the facts and evidence, and there was no legal ground for reversing their decisions.

Decision of the Court:

The appeal was dismissed by the Calcutta High Court. The hiba-bil-iwaz was upheld as valid, and the subsequent sale deed executed in favor of the appellant was not considered to be affected by the earlier deed. The Court did not find any grounds to declare the hiba-bil-iwaz void or voidable under the law.

Legal Takeaways:

Hiba-bil-iwaz (gift with consideration) needs to be carefully scrutinized in terms of its execution, registration, and the authenticity of the claimed consideration.
Section 31 of the Specific Relief Act, 1963 requires a party to show that the instrument is void or voidable and that not canceling it would cause significant injury. Fraud alone is not sufficient to invalidate such an instrument unless clear evidence is provided.
In property disputes, due diligence is critical, and the parties should ensure that proper searches are conducted before acquiring property.
Factual findings by lower courts are generally not overturned in appeals unless there is a substantial question of law or a miscarriage of justice.

This case is a good example of how property transactions and disputes around hiba-bil-iwaz (a form of Islamic gift deed) are handled in the courts, especially when issues of fraud and ownership rights come into play.

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