GHIASUDDIN BABU KHAN v. COMMISSIONER OF INCOME TAX
[Citation -1985-LL-0422-3]

Citation 1985-LL-0422-3
Appellant Name GHIASUDDIN BABU KHAN
Respondent Name COMMISSIONER OF INCOME TAX
Court ITAT
Relevant Act Income-tax
Date of Order 22/04/1985
Assessment Year 1967-68, 1968-69, 1969-70
Judgment View Judgment
Keyword Tags adequate consideration • transfer of property • mutual agreement • operation of law • civil contract • personal law
Bot Summary: 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....... 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....... 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. 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. His wife 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 s. 45(2) of the Provincial Insolvency Act. 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. 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. 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 ununderstandable why a particular portion of the dower agreed upon at a point of time 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. 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.


JUDGMENT JUDGMENT judgment of court was delivered by JEEVAN REDDY J.-(R.C. No. 108 of 1977) Income-tax Appellate Tribunal, Hyderabad, referred following question for opinion of this court, under s. 256(2) of I.T. Act: " Whether, on facts and in circumstances of case, Tribunal was justified in holding that property situated at Abid Road, Hyderabad, standing in name of wife of late Sri A. K. Babu Khan can be included in assessment of late Sri A. K. Babu Khan, which was given away by him to his wife in satisfaction of dower (Meher) debt in year 1928? " Late Babu Khan married Smt. Shahzadi Begum in or about 1927. In 1928, he transferred property concerned herein to his wife in lieu of deferred dower. Babu Khan died in October, 1968. For assessment years 1967-68, 1968-69 and 1969-70, question arose in assessment proceedings under I.T. Act, whether income from said property should be included in income of Babu Khan. assessee's contention was that, inasmuch as said property was transferred to his wife as far back as 1928 in lieu of " deferred dower ", i.e., for adequate consideration, income therefrom cannot be included in his income under s. 64 of Act. This was rejected by ITO, but accepted by AAC in appeal. However, when matter came to Tribunal, Tribunal rejected assessee's contention, following decision of this court in CWT v. Khan Saheb Dost Mohd. Alladin [1973] 91 ITR 179. assessee then obtained this reference under s. 256(2) of Act. Since there was no specific finding that said property was transferred to assessee's wife in 1928, either in order of ITO or AAC or Tribunal, Bench of this court called upon Tribunal to submit supplemental statement on following aspect: " Whether property in question, i.e., eighth item, was transferred by Sri A. K. Babu Khan to his wife in lieu of deferred dower, and if so, what are circumstances in which said transfer was made? " On consideration of material placed before it by parties, Tribunal recorded finding to effect that though there is no registered document evidencing transfer, transfer indeed took place in year 1928 about one year after marriage in lieu of deferred dower. Tribunal found that said property is property of Mrs. Babu Khan. This court accepted finding. question then arose whether said transfer was valid and competent and whether it can be said that transfer was made for adequate consideration within meaning of clause (iv) of sub-s. (1) of s. 64 (at relevant time, clause (iii)) of Act. It was contended by Revenue, relying upon decision of this court in CWT v. Khan Saheb Dost Mohd. Alladin [1973] 91 ITR 179, that it is not open to Muslim husband to pay deferred dower to his wife at any point of time earlier than dissolution of marriage. It was contended that deferred dower is payable only in event of 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 said property to his wife in lieu of deferred dower, one year after marriage, i.e., long before dissolution of their marriage; deferred dower became payable only on death of Babu Khan. On other hand, it was contended by Sri Habeeb Ansari, learned counsel for assessee, that decision of this court relied upon by Revenue does not represent correct position in Muslim law and that contrary view has consistently been taken by Allahabad and Nagpur High Courts, which decisions were not brought to notice of Bench. He, therefore, submitted that aforesaid Bench decision requires reconsideration. Since Bench which initially heard this reference was inclined to disagree with earlier Bench decision of this court, matter was referred to Full Bench. " Meher " or " dower " is sum of money or other property which wife is entitled to receive from husband in consideration of marriage. In Mulla's Principles of Mahomedan Law (eighteenth edition), following statement occurs, after stating above proposition: " word consideration is not used in sense in which word is used in Contract Act. Under Mahomedan law, dower is obligation imposed upon husband as mark of respect to wife. Mahmood J., in Abdul Kadir v. Salima [1886] ILR 8 All 1.49, said that it had been compared to price in contract of sale because marriage is civil contract and sale is typical contract to which Mahomedan jurists are accustomed to refer by way of analogy. If dower were bride price, post-nuptial agreement to pay dower would be void for want of consideration, but such agreement is valid and enforceable........ ( para 285, at page 308). " amount of dower is usually split into two parts, one called ' prompt' which is payable on demand, and other called'deferred', which is payable on dissolution of marriage by death or divorce...... " (para 290, at page 311). " dower ranks as debt, and 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 right of retention to extent mentioned in s. 296 below. She is not entitled to any charge on her husband's property, though such charge may be created by agreement ...... " (para 295, at page 315). To same effect is statement of law in paragraph 92 of Tyabji's Muhammadan Law (third edition). In paragraph 93, learned author says that, under Hanafi and Shia Ismaili law, wife is entitled to claim Meher from her husband, even though she has expressly contracted not to claim it. In paragraph 99, learned author states further: " At any time during continuance of marriage, addition may be made to meher; husband's promise to add to meher if accepted by wife, becomes incorporated into marriage contract, and bind him........ " Again in paragraph 100, it is stated: " wife may validly agree to reduction of her meher, or make gift (or remission) of 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 annuity, and if purported to be made by widow to deceased husband or his heirs, consists of release of claim, which under Muhammadan law does not require to be accepted by heirs of husband. " In Ameer Ali's Treaties on Mahommedan Law (vol. II, third edition) following statement of law occurs at page 482: "........ As there is nothing in Koran or in traditions tending to show that integral payment of dower prior to consummation is obligatory in law, later juris-consults, says M. Sautayra, have held that portion of meher should be considered payable at once or on demand, and remainder on dissolution of contract, whether by divorce or death of either of parties. portion which is payable immediately, is called mahr-i- muwajjal'prompt' or'exigible', and wife can refuse to enter conjugal domicile until payment of prompt portion of dower. other portion is called mahr-i-muwajjal ` deferred dower', which does not become due until dissolution of contract. It is customary in India to fix half dower as prompt and remaining moiety as deferred or'postponed'; but parties are entitled to make any other stipulation as they choose. For example, they may allow whole amount to remain unpaid until death of either husband or wife. Generally speaking, among Mussulmans of India, deferred dower is penal sum, which is allowed to remain unpaid with object of compelling husband to fulfil terms of marriage contract in their entirety........" At page 483, it is stated: " It is also lawful to stipulate that husband should pay as much as he can at once, and remainder at some fixed time later. " It is thus clear that dower is treated as sum agreed in consideration of marriage. In Muslim law, marriage is civil contract; dower is matter of agreement between parties; it can be agreed upon at time of marriage; it can also be agreed upon after marriage; it can be enhanced after marriage by mutual consent, or relinquished, as case may be, by wife. It is open to parties to agree that dower fixed shall be partly prompt, and partly deferred; they can agree upon quantum which is to be treated as prompt, and that which is to be treated as " deferred ". It is open to parties to agree that whole of dower shall be prompt; it is also open to them to agree that only certain small amount shall be prompt and major portion shall be " deferred ". In short, it is matter of mutual agreement law only says that there shall be dower, leaving rest to be agreed upon between parties. For instance, it is open to parties to marriage to agree that whole of dower amount agreed upon shall be'prompt' dower. If so, we fail to see any disability or bar to parties agreeing that amount agreed upon as deferred dower at time of marriage shall be treated as prompt dower at any point of time after marriage, before deferred dower becomes actually due as per initial agreement. No textual prohibition to said effect is brought to our notice, nor was any cited in Bench decision relied upon by Revenue. It is true that, where particular amount is agreed upon as deferred dower, wife cannot claim unilateral right to call upon husband to pay same before happening of stipulated event; but, if she chooses to make demand, we see no bar, in principle, to husband agreeing to it. Indeed, even without such demand, husband can choose to pay deferred dower either during his lifetime, or before marriage is dissolved by divorce. husband may be of 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 said sum even during his own lifetime and thus save wife from botheration, or necessity, of realising it from out of his estate. matter can be looked at from another angle too bearing in mind that it is essentially matter of agreement between parties, which can also be varied later by mutual agreement. Take case, where takes loan from B agreeing to repay it after expiry of, say, one year. In such case, it will not be open to B to demand payment of amount before expiry of one year. But, nothing prevents from offering to pay said debt before expiry of one year and if he so offers, it is also open to B to receive and accept same. No one can say in such case-nor does law say-that, since period of one year has not expired, B cannot accept amount and that both parties should necessarily wait for expiry of one year to pay and receive amount unless, of course, there is law to that effect or initial agreement specifically says so. It should be remembered that deferred dower is in nature of debt-an unsecured debt. husband is ill nature of debtor, and wife is in nature of creditor. deferred dower is payable, ordinarily, on dissolution of marriage by death or divorce; but, there is nothing in Muslim law to prevent husband from choosing to pay said debt before happening of stipulated event, and wife from accepting it, though it may be that wife may not be entitled to claim or enforce such claim before happening of stipulated event. This view is supported by following decisions: In Suba Bibi v. Balgobind Das [1886] ILR 8 All 178, it was held that deferred dower debt can be treated as " prompt " by husband. Again, in Seth Nemichand v. Mt. Maluk Begum [1910] 5 IC 316, Bench of Allahabad High Court held that deferred dower can form valid consideration for transfer of property during lifetime of husband who has not divorced his wife. It was held that while wife is not entitled as of right to demand payment of her deferred dower, husband is entitled, if he go pleases, to pay his wife her dower before it is due, or to discharge or satisfy his obligation in any other legal way. To same effect is another decision of Allahabad High Court in Khodija Bibi v. Shah Mohammad Zahir Alam [1901] AWN 64. above three decisions of Allahabad High Court were affirmed and followed by Bench of that court in Mangat Rai v. Mt. Sakina Begum, AIR 1934 All 441. Accepting view expressed in aforesaid decisions, Bench held: " We accept contention that wife is not entitled as of right to demand payment of her deferred dower debt and cannot enforce such claim; but if she does demand it and if husband thinks fit to pay it or to make transfer of property in her favour in lieu thereof, he is legally competent to do so and such transfer will be valid. " In Bibi Janbi v. Abbas Ali, AIR 1941 Nagpur 167, Vivian Bose J. pointed out that interest of wife in deferred dower is vested right and not contingent one. He held that said right is not liable to be displaced by happening of any event, not even her death, because in such case, her heirs can claim money. To same effect is decision of Nagpur High Court in Kulsambi v. Bilan Khan, AIR 1929 Nagpur 121. above decisions clearly establish that it is open to husband to accelerate date or time of payment of deferred dower, though wife has no right as such to compel him to do so. They also establish that right of wife to deferred dower is not contingent right, but vested right. event which makes deferred dower payable, viz., dissolution of marriage either by death or divorce, is definite and certain event, and said right cannot, therefore, be called contingent right. Even if wife dies before realising dower debt, her heirs can claim and recover same. That nature of said right is not contingent but vested, is also evident from following passage from G. W. Paton's Text Book of Jurisprudence (third edition) at page 269: " Every right arises from title. When all investitive facts which are necessary to create right have occurred, right is vested; when part of investitive facts have occurred, right is contingent until happening of all facts on which title depends. This is simple distinction. But, unfortunately, word'vested' is used in two senses. Firstly, interest may be vested in possession, when there is right to present enjoyment, e.g., when I own and occupy blackacre. But interest may be vested, even where it does not carry right to immediate possession, if it does confer fixed right of taking possession in future. Since all investitive facts which are necessary to create right have occurred, right is vested in interest, even though actual enjoyment be postponed to definite time in future. If grant is made to B in fee simple, he takes vested right in possession. " Now we shall refer to decisions relied upon for Revenue which, according to learned counsel for Department, take contrary view. Reliance is first placed upon decision in Mirza Ali v. Mt. Qadari Khanam, AIR 1919 Lahore 139; 50 IC 774. In that case, learned single judge held that, in view of proviso to s. 24 of Provincial Insolvency Act, 1907, amount of deferred dower cannot be entered in schedule of debts of insolvent (husband). It is relevant to notice facts of case. insolvent (husband) entered only amount of prompt dower in list of debts submitted by him. His wife, however, got full amount of both prompt, and deferred dower, entered in schedule, on reasoning that unconditional order of discharge will release insolvent from any amount due as deferred dower under s. 45(2) of Provincial Insolvency Act. learned judge, while agreeing that said consequence does indeed follow, observed: " But remedy against any such injustice is simple. court should have directed wife to make application herself or through receiver under section 26(2) of Act for expunging of amount of deferred dower. It is moreover most doubtful whether debt should have been originally included in view of proviso to section 24. value of deferred dower at time when amount was entered in schedule was incapable of being fairly estimated, as it was possible for it to become payable after short or long period or perhaps, never to become payable in event of wife predeceasing her husband and leaving no heir. If this debt is expunged from schedule, no disadvantage will accrue to wife unless of course her husband dies eventually in penniless condition. " It is clear from above observations that while wife claimed immediate payment of deferred dower before it actually became due, husband had not agreed thereto and this makes all difference to principle. We are, therefore, unable to see how this decision runs counter to principle enunciated by us above or to decisions cited hereinbefore. next decision relied upon is decision of Division Bench of Allahabad High Court in Sughra Bibi v. Gaya Prasad, AIR 1930 All 580. This case too arose under Provincial Insolvency Act. husband was adjudged insolvent on December 3, 1927. Prior to that, on February 21, 1927, he had transferred all his property to his wife in lieu of her dower debt. said transfer was set aside as fraudulent. Subsequently, wife applied to have her name entered in schedule of creditors, for total amount of her deferred dower debt which was disallowed by courts below. matter then came to High Court. following observations of Bench are apposite and are relied upon for Revenue (at p. 580 of 1930 AIR): " sole question before us is whether Mahommedan wife is entitled to be entered in schedule of creditors of her insolvent husband for amount of her deferred dower debt. Deferred dower debt, as stated in para. 46 of Wilson's Mahommedan Law (edition IV), is payable only on termination of marriage by death or divorce. Neither of these contingencies has yet taken place, and it is not possible to say whether 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 husband would predecease or divorce his wife, if either of two contingencies did take place. Accordingly, it is not possible for insolvency court to estimate what would be present value of deferred dower debt of Rs. 5,000 which was to be paid if either of those contingencies took place. Section 33, sub-section (1), Provincial Insolvency Act, states: ' Provided that if, in opinion of court, value of any debt is incapable of being fairly estimated, court may make order to that effect, and thereupon debt shall not be included in schedule.' We consider that present deferred dower debt comes within that proviso. It is not possible for insolvency court to arrive at any fair estimate of value of this deferred dower debt in comparison with debts of other creditors who are entered in schedule. " Undoubtedly, this decision goes to support Revenue's contention that deferred dower is payable only on dissolution of marriage, but not at any anterior point of time. But, in our opinion, this decision has to be read in context of proviso to s. 33(1) of Insolvency Act, which is evident from fact that, when appellant's wife relied upon decision in Suba Bibi v. Balgobind Das [1986] ILR 8 All 178, Bench observed: " that ruling does not apply to insolvency cases ". They did not disagree with principle of said decision, but only stated that said principle has no application to insolvency cases. said decision cannot, therefore, be construed as running counter to principle of decision in Suba Bibi's case [1886] ILR 8 All 178, or other earlier decisions of same court, referred to above. Even otherwise, we are not prepared to agree with ratio of this decision, because it runs counter to essential nature of dower, viz., that it is really and ultimately matter of agreement between parties. Now, we come to Bench decision of this court in CWT v. Khan Saheb Dost Mohd. Alladin [1973] 91 ITR 179. case arose under W.T. Act. At time of marriage, assessee had stipulated certain amount as deferred dower. agreement provided that said dower shall be payable on dissolution of marriage, either by death or by operation of law, and further that " it shall be optional with husband to pay and discharge said Meher earlier at any time hereafter ". In pursuance of said stipulation, husband transferred certain properties in favour of his wife during his lifetime, i.e., during subsistence of marriage. In his wealth-tax return, assessee did not include property transferred to his wife, which was objected to by Department. According to s. 4(1)(a)(i) of W.T. Act, value of assets held by spouse of individual " to whom such assets have been transferred by individual, directly or indirectly, otherwise than for adequate consideration, or in connection with agreement to live apart ........ was includible. question thus arose, whether transfer of property effected by assessee in favour of his wife in lieu of deferred dower, is transfer for adequate consideration or not. Revenue's contention was that, inasmuch as, according to Muslim law, deferred dower is payable only on happening of stipulated event, viz., dissolution of marriage by death or divorce, it is not debt in praesenti and hence transfer effected in lieu of such debt cannot be called adequate consideration. For examining this contention, Bench referred to concept of dower in Muslim law (at pages 187 and 188) which is substantially same as set out in texts referred to by us hereinbefore. After setting out law on subject, Bench proceeded to observe thus (p. 188): " Deferred dower cannot be converted into prompt dower by making wife demanding same as it is not debt in praesenti. Deferred dower is payable on dissolution of marriage or happening of some event specified in the' sianama', or s agreed upon by parties. Normally, Muslims in India treat deferred dower as penal sum permitted to remain unpaid with object of compelling husband to live together and fulfil terms of marriage contract in their entirety; (See Mohammadan Law by Ameer Ali, 3rd edition, volume-II, page 482). In case of deferred dower, husband is not liable to pay same until dissolution of marriage by death or divorce or on happening of specified event. " Bench then referred to decision of Supreme Court in Kesoram Industries and Cotton Mills Ltd. v. CWT [1966] 59 ITR 767, and to definition of " debt " set out therein. following extract from judgment of Supreme Court was referred to (p. 189 of 91 ITR): " There is no conflict on definition of word' debt'. All decisions agree that meaning of expression' debt' may take colour from provisions of concerned Act: it may have different shades of meaning. But following definition is unanimously accepted: ' debt is sum of money which is now payable or will become payable in future by reason of present obligation: debitum in Praesenti, solvendum in futuro.' Bench then proceeded to observe that contingent debt is not debt in praesenti or in futuro till contingency occurred, and also that contingent debt cannot be converted into debt in praesenti until stipulated event happens. They drew upon analogy of impermissibility of debt in praesenti not being allowed to be converted into contingent one on fulfilment of subsequent event. From said principle, Bench drew following conclusion (pp. 190 to 192 of 91 ITR): " When once it was agreed that dower shall become due on dissolution of marriage, parties have no option to pay or demand payment, as case may be, in respect of said dower prior to dissolution of marriage. Hence, husband is not bound or obliged in law to pay amount of original or enhanced dower during subsistence of marriage. Nor can wife demand payment of same before dissolution of marriage either by death or by law....... liability in instant case is contingent on specified subsequent event, i.e., dissolution of marriage by death of either of parties, or by divorce. Until and unless such contingency happens, dower, in our opinion, must be held to be not due and payable by assessees, nor can their wives demand and claim for recovery of same until dissolution of their marriages...... parties are not competent under their personal law to convert deferred dower into prompt one either by their conduct or by executing any documents. That apart, deferred dower would not become debt owed by assessee during subsistence of marriage...... assessees either of their volition or with consent of their wives are not entitled to make such provision in deeds executed by them. Such provision will be illegal and not binding on parties, and much less on Revenue... " With great respect to learned judges who decided case, we are unable to agree with said view. Even according to concept of dower in Muslim law, as set out by Bench, it is primarily and wholly matter of agreement between parties. Once it is matter of agreement, it must follow that 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 text-books, nor is any such referred to in said decision. Bench seems to have laid great stress upon statement in Ameer Ali's Mahommedan Law that, normally, Muslims in India treat deferred dower as penal sum " which is allowed to remain unpaid with object of compelling husband to fulfil terms of marriage contract in their entirety ". But, if it is open to parties, even at time of marriage, to agree that entire dower agreed upon shall be prompt dower, and where it is equally open to them to agree upon amount of dower even subsequent to marriage, or to enhance it, or to reduce or relinquish it, it is ununderstandable why particular portion of dower agreed upon at point of time (ordinarily, at time of marriage) as deferred dower cannot subsequently be converted into prompt dower? At any rate, there is no reason why parties should be prevented from paying and receiving same before stipulated event. It is one thing to say that wife cannot demand payment of deferred dower before happening of stipulated event; it is another thing to say that husband cannot honour such debt before it becomes actually due. As observed by us hereinbefore, Muslim husband may think it more appropriate to pay deferred dower to his wife even during his own lifetime, without putting wife to 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 Bench that deferred dower is contingent debt. event stipulated, viz., dissolution of marriage by death or divorce, is not contingency, but definite, certain event, which is bound to happen. Even if wife predeceases, her heirs can claim and recover it. We are equally of opinion that Bench did not correctly appreciate statement of law in Kesoram Industries' case [1966] 59 ITR 767 (SC). definition set out by Supreme Court is to following effect: " debt is sum of money which is now payable or will become payable in future by reason of present obligation. " Bench understood expression " present obligation " as referring to happening of stipulated event. We respectfully disagree. " Present obligation "applying said definition to facts of case before us arises on day of marriage, and cannot be understood as referring to happening of stipulated event. obligation to pay deferred dower arises on day of marriage, though its payment is postponed to happening of stipulated event, which is definite and certain event, and not contingent one. That deferred dower is not contingent debt is also view of Vivian Bose J. in Bibi Janbi v. Abbas Ali, AIR 1941 Nag 167. statement of law from G. W. Paton's Janbi v. Abbas Ali, AIR 1941 Nag 167. statement of law from G. W. Paton's Jurisprudence also goes to show that such debt cannot be called contingent debt. In such situation, we are unable to agree that it is not open to Muslim husband to choose to pay deferred dower at any point of time earlier than happening of stipulated event. It is, no doubt, not debt in praesenti, ordinarily speaking; but, if husband chooses to pay it at once, and pays it, it becomes debt in praesenti. Mr. M. S. N. Murthy, learned standing counsel for Revenue, contended that, if we take such view, it would open up new avenue of mischief. He contended that it would now be open to Muslim husband to transfer all his properties to his wife in lieu of her deferred dower, and thereby defeat other creditors. We are unable to appreciate said contention. Deferred dower is unsecured debt. secured creditors will not be prejudicially affected by any transfer effected by husband in favour of his wife, in lieu of deferred dower. So far as unsecured creditors are concerned, it is always open to them to impugn such transfer according to ordinary law of land. situation would be no different than where Muslim prefers one of his unsecured creditors and transfers all his properties to such creditor; remedies which other unsecured creditors have in such situation, would equally be available in case of transfer in favour of wife in lieu of deferred dower; no more, no less. Therefore, apprehension expressed by learned counsel appears to be unfounded. Indeed, two Allahabad decisions referred to above, i.e., Khodija Bibi v. Shah Mohammad Zahir Alam [1901] AWN 64 and Seth Nemi Chand v. Mt. Maluk Begum [1910] 5 IC 316, are cases of transfer of property by Muslim husband to his wife in lieu of deferred dower. Mr. M. Suryanarayana Murthy then contended that view taken by Bench in CWT v. Khan Saheb Dost Mohd. Alladin[1973] 91 ITR 179 (SC), has also been approved by Bench of Bombay High Court in CIT v. Vivian Bose [1979] 118 ITR 989 (Bom). We have seen said decision. only observation in our Bench judgment, which was quoted with approval by Bombay High Court, is one dealing with meaning of expression " adequate consideration " occurring in s. 4(1)(a)(i) of W.T. Act. 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 basis of money's worth, was accepted as representing correct position. Indeed, case before Bombay High Court did not pertain to Muslims, nor did they deal with question of dower, or deferred dower, at all. For aforesaid reasons, we answer question referred to us in negative, i.e., in favour of assessee and against Revenue. In circumstances, we make no order as to costs. R.C. No. 160 of 1978: For reasons recorded by us in R.C. No. 108 of 1977, we answer question referred to us in this referred case in affirmative, i.e., we hold that payment of Rs. 50,000 by assessee to his wife towards liquidation of Meher debt due by him, is for adequate consideration within meaning of s. 64(1)(iv) of I.T. Act, 1961. Our answer is in favour of assessee and against Revenue. No costs. *** GHIASUDDIN BABU KHAN v. COMMISSIONER OF INCOME TAX
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