A Muslim executed a deed in favour of his wife whereby he grants certain immovable property to her in lieu of her dower but possession is not delivered to her. What is the nature and validity of this transaction?

Question: A Muslim executed a deed in favour of his wife whereby he grants certain immovable property to her in lieu of her dower but possession is not delivered to her. What is the nature and validity of this transaction? [HJS 2000]

Find the question and answer of Muslim Law only on Legal Bites. [A Muslim executed a deed in favour of his wife whereby he grants certain immovable property to her in lieu of her dower but possession is not delivered to her. What is the nature and validity of this transaction?]

Answer

After the death of the husband, the most effective method of enforcement of the dower is the exercise of the right of retention. A widow whose dower remains unpaid has a right to retain the properties of the husband till her dower debt is satisfied. This right is termed the right of retention in lieu of unpaid dower, and it is available to a widow, whether there is an agreement between the parties for this right or not.

Under this right, if a wife has taken possession of her husband's properties lawfully (with the free consent of the husband) in lieu of an unpaid dower, then she is entitled to retain that possession after the death of her husband until her dower is paid out of the properties retained by her.

This right is exercised against the creditors of her deceased husband and his legal heirs if any. The husband's legal heirs cannot get possession (and benefit) of the deceased's properties until they make payments towards the unpaid dower in proportion to their respective shares. Thus, this may be said to be a coercive method of recovery of unpaid dower from the husband's legal heirs.

The right to hold possession enables her only to retain possession of the property of which she has obtained possession and, if she is dispossessed, to sue for recovery of possession. Thus, the wife has the right to sue for recovery of possession where the possession was not delivered to her in lieu of her dower as promised by the husband.

Moreover, the gifts under the Mohammedan Law may be classified under three heads:

1. A Hiba, pure and simple ;

2. A Hiba-bil-iwaz (a grant or gift for a consideration) which is more in the nature of an exchange than a gift; and

3. A Hiba ba-shartul-iwaz, or a grant made on the condition that the donee or transferee should pay to the donor at some future time or periodically some determinate thing in return for the grant.

The present form of transfer is classified as Hiba-bil-iwaz in Mohammedan Law. Hiba-bil-iwaz is distinguished from a hiba or simple gift, which is a gift for consideration. It is, in reality, a sale and has all the incidents of a contract of sale. Accordingly, possession is not required to complete the transfer, as in the case of a hiba. So, the transaction is a hiba-bil-iwaz, and it is valid, although possession may not have been delivered.

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