The Commissioner Of Income-Tax vs Sayed Saddique Imam And Ors. on 8 November, 1977
13. The last contention of Mr. Hussain is that if the transaction fails as being a valid hiba-bil-ewaz, it will still be effective as a gift, as the requirement of possession has been complied with, and it is well settled that no registered document is required for a Mohammedan gift. He has relied, in support of his proposition, on decisions in the cases of Serajuddin Haldar v. Isab Haldar (AIR 1922 Cal 258) and Mt. Sardar Khatun v. Secretary of State (AIR 1939 Sind 9), as well as on Saksena's Muslim Law, Fourth Edition, page 432, and Mulla's Principles of Mohammedan Law, Seventeenth Edition, page 164 footnote (c). It is true that a document is not required for a simple hiba to be valid, but where a transaction fails as a hiba-bil-ewaz for not being evidence ed by a registered instrument, it will not be good as a hiba, as a Hiba, pura and simple, has to be without any ex-change, as discussed above. Both the cases relied upon by Mr. Hussain (AIR 1922 Cal 258 and AIR 1939 Sind 9) related to the interpretation of pleadings and it has been held therein that although a transaction can be described in the plaint as a hiba-bil-ewaz, it is open to the plaintiff to show that if was a simple hiba, provided that the point is raised at the earlier stage of the suit These two decisions are hardly of any assistance to the learned counsel, as in a reference, no fresh facts can be permitted to be investigated and the findings of facts are binding. In the instant case, the definite plea of the assesses throughout was that the house was transferred in lieu of dower debt. The assesses not having pleaded at any earlier stage the case that it was a case of pure gift, i.e., a hiba without any consideration, it is too late for him now to raise this plea in a reference before this Court,