1. The plaintiff in this case is the widow of Sirdar Mir Abdul Ali, a detective policeman well-known in Bombay and hereinafter called the Sirdar, The plaintiff was his second wife, ho having had by his first wife, six children of whom a son defendant 1 herein is the only survivor. Defendants 2 and 3 herein are his children by the plaintiff.
2. The plaintiff claims under an agreement, which, it is said, was made on the occasion of his second marriage and is Ex. A in the case, afterwards, however, marked by me as A 1, as Ex. A was the affidavit of service on the second defendant.
3. The first issue raised is : Whether the Sirdar agreed to pay to the plaintiff 80 000 Ashrufces, that is, 24 lacs of Rupees, as 'Meher' in consideration of their marriage as alleged in one of the plaints. The trial of this issue has taken a very considerable time; but there can be to my mind no question whatever as to that agreement having been proved. The evidence is so overwhelming in favour of it and the evidence against it so unsatisfactory that I do not propose to deal in detail with the evidence in support of it, the effect of which, however, may be stated shortly as follows :-
The first witness, who is the eldest son of Hasson Saheb Kazi of Deopur, where, it is admitted, the marriage was performed and where the agreement is proved to have been executed, produces the deed, as ho says, from the records in his father's office. I see no reason for doubting his evidence, although he certainly was not a very intelligent witness and I find that the agreement was produced from the proper custody.
4. The next witness Shaik Hyath Saheb, who was invited for the wedding and who was the vakil for the plaintiff at the marriage, attested the agreement and he speaks to the talk about the dower before the agreement was executed.
5. Balkrishna Gangaram says that the dower was fixed in his presence as 80,000 Ashrufces. He says that the Sirdar signed in Hindustani in his presence. He does not know English. The agreement was written by the Kulkarni, whom he knew. His name was Sakharam and he is dad.
6. Goolam Akbar, a bailiff in the Nasik District, also saw the agreement executed and the signatures put. They were put in his presence and the document was written in his presence.
7. To the same effect is Mehtab Khan the plaintiff's brother. He also says that he saw Sakharam Govind write the document.
8. One other witness Abaji Patel, Police Patel of Deopur, also speaks to having seen the agreement executed. But I have considerable doubt as to whether the witness really was present. He gave his age at 51 or 52 but he certainly looked considerably younger than that. He, I think, may be left out of consideration.
9. The next class of evidence in support of the agreement is that of the witnesses who speak to the signature in English as being that of the Sirdar. I refer to Mr. Mirza junior the plaintiffs attorney, Mr. Gell, Mr. Me Dormott, Mr. Sloane and the Persian Detective, who speaks to the signature in Urdu as being that of the Sirdar.
10. As against this quantity and quality of evidence we have that of defendant 1. He gave his evidence in an unsatisfactory and shifting manner and was submitted to a most excellent and searching cross-examination by Mr. Strangmau for the plaintiff. He knew, he says, that his father had settled a dower on his step-mother. He always knew the fact but not the amount. He cannot say that the document is forged but that it is very suspicious. He says again : ''I think it has not come in the regular course. The only inference I can draw is that the document was forged and put in the Kazi's papers. I have no idea who forged it or at whose instance or when it was forged But I do not charge it to be a forgery.' He further makes this astonishing statement: 'If it were not for the document itself I would admit it to be his signature as it looks very much like it. If the body of the document was cut off I would admit it to be his signature.' This is really an admission that the two signatures by the Sirdar are genuine.
11. The next circumstance to have regard to with regard to this document are the proceedings in Suit No. 721 of 1905. See Exs. 7 to 13 inclusive. That was a suit filed between Akbar Ali who alleged himself to be a son of the Sirdar against the parties to this suit in which he claimed a share in the property. Ex. No. 8 is the present plaintiff's written statement in that suit, in which she was the third defendant and in that document she sets up her present claim to dower. Mr. Mirza junior says that her present claim was first set up in that written statement. It is obvious that the present plaintiff's claim to dower was a complete answer to the claim in that suit. I cannot believe that derendant 1 herein was unaware of the present plaintiff's claim being put forward therein. The defendants' interests in that suit were all the same and if he was aware of his step-mother's claim to dower therein, it shows that ho relied upon that claim as being a complete answer to the plaintiff's claim therein. I would add that I see no reason to doubt the evidence of Secunder Khan as to his conversation with delendant. as to plaintiff's claim to dower being put forward in this suit. The suit was ultimately compromised and a consent decree passed and certified to be for the benefit of the minor plaintiff in the suit.
12. Taking all the above evidence and circumstances into consideration I am of opinion that the agreement A is proved to have been duly executed by the Sirdar and is a genuine document.
13. The next issue, issue No. 2, is : Whether the plaintiff has not released her claim to dower if any, with which must be considered issues 5 and 6 raised by Mr. Strangman for the plaintiff; 5. Whether anything said by the plaintiff at the time of or alter the death of the Sirdar amounted to a release ; 6 whether, it so, such release would be binding on the plaintiff in view of the fact that she is a parduhna lady and of the circumstances under which it is said to have taken peace.
14. Issue 2 no doubt gives rise to some difficulty. The Sirdar died in the alternoon of the l4th June 1906, at his house in Love Lane, Mazagaou, at 3-30 P.M. So defendant 1 says, as, he says. he was honhng his lather s hand at the time and looked at his watch. 1 take it, therfore, that he died between 3-30 and 4 p.m. that alternoon.
15. The allegation of defendant 1 and his various witnesses on the point is that immediately after the death of the Sirdar the plaintiff used the words. Meher man kiya,' meaning thereby, 'I have relinquished or do relinquish my dower.' the defen-dant s case is that the plaintiff made repeated use of these words during the course or that afternoon and after the body was removed from the house at 9.30 P.M. that, evening.
16. Before I deal seriatim with the evidence or the witnesses on this point, there are two circumstances which occur to one. first of an is the circumstance (see the evidence of the Chier persian and Arabic Translator) that the expression used is not a grammatical expression, (secondly, it is possible, as iar as I can judge from the evidence, that the word meher', which means 'dower', might have been the word maher', which means 'kindness', alluding to the tact that her deceased husband and she had been always on very good terms, in which case she might have intended to convey that he had always been very good to her.
17. Another circumstance which strikes one is that she made use of the alleged expression over and over again and it certanily strikes my mind as a strange thing that she should have found it necessary to repeat the expression or that she should have been thinking of her claim lor dower, when as it would be much more natural to expect that she should repeat expressions of regret at having lost her husband who had been always good to her.
18. Another circumstance which strikes one is that according to the evidence on behalf of the defendant 1, nobody in the house seems at the time to have attributed any importance to the expression. If the woman under these Circumstances really in tended to relinquish her claim to 24 lacs of Rupees, it certainly docs appear strange that neither defendant, nor her daughter should have put any question to her as to what she was saying-Then with regard to the evidence on the point, I do not think it would be safe to rely upon the statements of the plaintiff herself and her daughter Afzal-oon-nissa, because they both over and over again paid that the plaintiff was unconscious after her husband's death during the whole of the afternoon until the body was removed, which is a statement which 1 find impossible to believe.
19. Secunder Khan, who married defendant 3 after the death of the Sirdar and was in the house from immediately after the Sirdar's death till the body was removed and buried swears that he never heard the plaintiff use any such words or any words to that effect. He must have heard them if she went on repeating them as defendant 1 and his witnesses say, the did. Ho does say that the widow and her daughter were weaping and wailing.
20. Mohamad Sidick was in the house from 4 P.M. till the body was removed, but, he says, he was seated in the compound of the bungalow : and was only in the house for 5 minutes to see the Sirdar's face when he went up, but did not hear the plaintiff say 'Meher maf' kiya' or words to that effect.
21. Mr. Mirza Jr., the attorney, got to the house at 6 P.M.; stayed there till 9-30 when the corpse was removed: was standing with defendant 1 mostly, however, on the ground floor. He heard no one saying 'Meher maf kiya'; but the plaintiff was crying part of the time.
22. Kulssum, the ayah of the family, who was in the house all the time on the 14th June did not hear the plaintiff say ' Meher maf kiya' or anything to that effect.
23. Harpal Dusrut, who nursed the Sirdar through his last illness. did not hear the words used or words to that effect.
24. On the other hand, we have the evidence of defendant 1, but seeing how unsatisfactory a witness he was I think. I may sately leave his evidence on this point out of consideration, as I have that of the plaintiff and defendant 3, all being interested parties.
25. The real difficulty I have felt is with regard to the evidence of Dr. Choksey, a doctor of medicine and Mr. Baptista, Barrister at-law.
26. Dr. Choksey saw the deceased at 12 o'clock midday on the 14th June; but he was not dying then. He was sent for again at 2-30 with a message to say that he was very bad and when he got there at 4 P.M. he found that he was dead. He goes on: ' Defendant took mo to the plaintiff to the room where she was. He took mo to his sister first and then to the plaintiff to console them. I saw the plaintiff in a room next to the hall. I did not see her anywhere else. I saw her face. The plaintiff said some words to this effect: '' Meher mat' kiya.' She said this repeatedly. I had no idea what she meant, so I 'asked defendant 1. I have no doubt at all as to what I heard her say. She repeated the words so often that one could not help catching them. I heard these on different occasions: not on one occasion. She repeated them certainly not under 50 times. But these repetitions occurred at intervals, mostly throughout the time I was there. I asked defendant 1 what they meant after she had repeated them 10 or 12 times. I thought she was asking for forgiveness. So I asked defendant 1. He said according to Mahomedan custom she was relinquishing her right to the dower. Defendant 1 was in the room. Sccundcr Khan was there off and on and her daughter was there at times. They must have heard it.'
27. In cross-examination he said, from June 1905 to September 1906, he had no occasion to recollect what took place on the day the Sirdar died. He does not know Hindustani except colloquially. When the plaintiff used the words he thought she was asking for forgiveness. But from what defendant 1 told him he would not have known what the words meant.
28. Now looking at this witness' evidence and I wish to place on record that the witness gave his evidence most straightforwardly and well-I have no doubt but that the witness was truly stating what he believed himself to have heard, but, as against it, it must be remarked that he is not acquainted with the Hindustani language and that it was the defendant 1 who told him what the words, he believed he heard, really meant.
29. The next witness is Mr. Baptista, and, without imputing to that gentleman any desire to make false statements on this point, I confess that his evidence does not to my mind clearly prove that these words were really used. He says that he heard the expression used three or four times. He went to the house first at 5 p.m. He did not then go upstairs. He went to see deceased but he did not see him then. He did not ask to see him the first time. He was there till 7 P.M. sitting downstairs. Then he went away and returned at 8 P.M. till the funeral started when he followed the body to the grave. On his second visit he did not go upstairs. He saw the body brought down. The bier was brought down and kept on the ground and the face was uncovered. He stood on the staircase as the body was brought down. He heard something being cried out. As the face was uncovered I heard women crying upstairs and a lady's voice saying 'Moher maf kiya'. In answer to me he said the staircase had twenty steps. Ho was at the side of the bier at the bottom of the staircase. The sound seemed to come from up stairs through the window in the front wall.
30. The first remark to make on this evidence is that the witness does not seem to have been in a very good position to have heard the words, he says, he did hear. The next remark is that the witness' recollection is certainly not very good because he says, he advised the defendant 1 to seal up the safe and others advised him. On the first occasion he went to the house, he believes Mirza, the attorney, i.e. Mirza Junior, did advise the defendant 1 to seal up the safe before him. 'Three of them went up to seal up the safe. I don't know if they did so. This is my recollection. I should be surprised if I am incorrect and to know that Mirza (by this he means Mirza Junior the attorney) did not arrive till after the safe was sealed '. His recollection is as strong as to that as about the words used.
31. Now looking at Dr. Choksey's evidence and that of Mr. Mirza Junior, I find it proved as a fact that the safe was sealed before Mr. Mirza Junior appeared on the scene on that day. This being so, Mr. Baptista's evidence is found to be unreliable with regard to an important circumstance. It is true he says further in his cross-examination that he did remark about the words to the defendant 1 during the procession to the grave-yard when he said to him: 'I don't think the old lady means mischief, as she has released the dower'. As to this passage of his evidence it certainly does seem strange that the first time Mr. Baptista should have mentioned this conversation was in his evidence before me, but he did not mention it any time before although he has made an affidavit in the case. For myself I cannot understand if any such conversation did pass between himself and defendant 1 on the way to the grave-yard how it is that any mention of it was not made in that affidavit.
32. Taking all the above evidence and circumstances into consideration, the conclusions I have come to are these: (a) I am not satisfied that the plaintiff did use the words ' Meher maf kiya '; and (b) that if she did use them that they really alluded to the relinquishment of her dower, As to issue No. 5, which I have above set out, even assuming that the plaintiff did use the words imputed to her and did intend to release her dower, there being no consideration alleged or proved for such release, it is not in law valid or binding upon her.
33. No doubt a debt may be effectually released by a contract for valuable consideration ; but a decoration by a testator to his executor that he never meant to call for payment of a promissory note, of which he was the holder, has been held not to constitute a release of the promissory note even in equity. See Byrn v. Godfrey (1798) 4 Ves. Jr.6. And a parol refusal on the part of the grantee of a charge on land to accept payment was held not sufficient to support a defence 'in equity against the legal representatives of the grantee who sought to enforce the charge- Cupit v. Jackson (1824) 13 Prico 721.
34. Again, where an obligee of a bond made an endorsement thereon expressing that he forgave the obligor a portion of the sum due, the Court refused to grant an injunction restraining the executors of the obligee from suing for the full amount because there was no consideration for the endorsement-Tufnell v. Constable (1836) 8 Sim. 69.
35. Under Section 25 of the Indian Contract Act an agreement without consideration is void save and except as therein specified, under none of which exceptions this case comes.
36. Abaji Sitarani v. Trimbak Municipality I L R (1903) 28 Bom. 666. shows that there must be a proposal in the case of remission of a contract which must be accepted. As I have above pointed out there was no acceptance by defendant 1 or any one on his behalf of the alleged relinquishment of the dower.
37. Upon this ground, therefore, I hold the release not binding upon the plaintiff.
38. The next point is raised by issue No. 6. It appears to me that looking at the circumstances under which the plaintiff is said to have relinquished her dower by using the words imputed to her, namely, when she was in great grief at the loss of her husband with whom she had lived on happy terms and looking also at the fact that she is an illiterate 'pardahn shin lady. and having regard to the principles which have been laid down in several cases recent y by the Privy Council, as to the duty of persons making contracts with ladies of that c ass to my mind it was incumbent upon the defendant 1 to see that if the plaintiff was to be taken to have released her dower she should have had competent legal advice as to her position in the matter and on this ground, also, the alleged relinquishment is not binding upon her.
39. The next issue to be dealt with is the third viz : Whether the plaintiff is in possession as alleged of the estate or any part thereof. I do not propose to find on this issue. A suit for the administration of the Sirdar's estate is now pending in this Court. Defendant 1 in his evidence in this suit was driven by the exigencies of his cross-examination to charge his deceased father with having received bribes and his step-mother with having made away with from 7 to 9 lacs of rupees belonging to the estate. It would be to my mind improper, having regard to the pendency of that administration suit to come to any finding upon this point in the present Suit. So I say nothing further about it.
40. The next issue was raised by Mr. Jardine, for the 1st defendant during the course of the hearing and I very reluctantly acceded to his request as appears from the judgment I wrote on application. The issue is : Whether the agreement A is not void for uncertainty. I find this in the negative. It is proved that the word ' Ashruffee' means a coin of uncertain value but it is a coin, as appears in the evidence of Mr. Lauder of the mint. '80,000 Ashruffees,' therefore cannot be said to be an uncertain sum. It is an ascertainable sum. In the present case it appears that defendant's dower was fixed at Rs. 1,25000 Secunder Khan's wife's dower was fixed at 50,000 Ashruffees The plaintiff is willing to take an Ashruffee as of the value of Rs. 15.
41. The next issue, Issue No. 8, is : Whether the said agreement is not void as against public policy. ' Public policy' has been described by an eminent Judge as an ''unruly horse' and it is unquestionably a dangerous question to decide upon. One can of course imagine cases in which excessive dower might be used or tried to be used to defeat the claim of the settlor's creditors-but this is not such a case.
42. The widow's aim for dower under Wahomedan Law is a debt against the husband's estate. See Wahidinnissa. Shubrathum (1870) 6 B.L.R. 54. But where a widow of a Mahomedan obtains actual possession of the estate she is a mortgagee of her husband under a claim to hold it as one of the heirs and, for her dower, she is entitled to retain possession until her dower is satisfied, the liability to account to those entitled to the property being subject to the claim for the profits received: Mussumat Bebee Bachun v. Sheikh Ha-mid Hossein (1871) 14 M.I.A. 377. Her possession cannot be disturbed until her dower debt has been satisfied and when lawfully in possession of her husband's estate she occupies a position analogous to that of a mortgagee. See Azizullah Khan v. Ahmad Ali Khan ILR (1885) All. 353. A Full Bench of Allahabad hold that a Mahomedan widow was entitled to the whole of the dower which her deceased husband had on marriage agreed to give her, whatever it might amount to. or whether or not her husband was comparatively poor when he married, or had not left assets sufficient to pay the dower debt: Sugra Bibi v. Masuma Bibi. I L R (1877) All. 573.
43. In Oudh, by the Oudh Laws Act XVIII of 1876., discretion was given to the Courts there to fix an amount of dower as being reasonable with reference to the means of the husband and the status of the wife, instead of making a decree for the amount of dower contracted for, however extravagant that amount may be. See The Collector of Moradabad v. Harbuns Singh I L R (1893) Cal. 135 and Sule-man Kadr v. Mehdi Begum Surreya Bahu I L R (1898) All. 17.
44. From these cases it appears that, but for legislation, dower will be decreed in terms of any agreement, for amongst Maho-medans the dower that a woman is entitled to in the absence of agreement is the average rate of dower granted to females of her father's family. Sec Digest on Customary Law by Sir W.H. Kattigan. 6th edition, Article 83, page 113, from which it further appeals that according to a law enacted for the subjects of the Amir of Afghanistan in 1883 a fixed scale, which is there given, has been prescribed for dower. Whether it would be desirable for legislation similar to that under the Oudh Laws Act being introduced into other part of British India is a question for the Legislature to decide. I ought to have mentioned that the parties hereto are Deccani Mahomedans.
45. As stated in my written judgment when Mr. Jardine applied to raise Issues Nos. 7 and 8, I declined to allow him to raise an issue whether the agreement was ever intended to be enforced on the death of the husband, he not having divorced his wife, because it appeared to me improper to allow to the detriment of a party to the contract the question to be raised as to whether it was intended to be enforced. No doubt, it may be that excessive amounts are fixed in dower agreements for the purpose of preventing of capricious divorces; but looking at the Full Bench case in Allahabad and the legislation in Oudh, that I have referred to and the plain words of the agreement in this case, in my opinion the plaintiff is entitled to the relief she claims.
46. Her claim is not resisted by defendants 2 and 3.
47. [Here His Lordship recorded his findings on the issues.]
48. I pass a decree for the plaintiff in the terms of paragraphs (a) to (f) of the plaint and direct the defendant 1 to pay the costs of the suit throughout including all costs reserved, except the costs of the appearance for defendant 3 by separate counsel.
49. Costs of appearance for defendant 3 by separate counsel, the defendant 3 must bear down to the time when her counsel Mr. Mirza ceased to appear for her and appeared for the plaintiff in lieu of the plaintiff's junior counsel; after which the defendant will have to bear the costs of such counsel. The decree will be for 80,000 Ashruffees at Rs. 15 per Ashruffce; the value which Mr. Strangman was willing to take. This sum will swallow up the whole of the estate.