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Jyanibegam FakiroddIn Vs. Umrav Begam - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 725 of 1907
Judge
Reported in(1908)10BOMLR764
AppellantJyanibegam Fakiroddin
RespondentUmrav Begam
Excerpt:
mahomedan law-dower-relinquishment-acceptance by the heirs.; under mahomedan law, the remission of dower by a widow without acceptance by the heirs of her husband is effective.; it is not in every case in which a man has benefited by the money of another that an obligation to repay that money arises.; ram tuhul v. biseswar (1875) l.r. 2 i.a. 131 and s.s. ruahon co. v. l. assurance [1900] a.c. 15 followed. - .....a remission of a debt to a debtor results in its extinction. it is obvious that for the purpose of debt remission the heirs of a debtor must stand in the same position as the debtor himself.13. to the above effect is a passage in amir ali, 3rd edition, at p. 107. again on p. 106 of the same work it is said 'the received doctrine is that even if the heirs of a debtor should reject a discharge of the debt, there would be no liability.'14. i therefore hold that the district judge was not warranted by the mahomedan law in holding the revision of her dowry by the defendant to be ineffective.15. in my opinion the point must be decided according to mahomedan law and not by reference to the provisions of the indian contract act.16. if follows that the property is not liable to any lien for dowry.....
Judgment:

Basil Scott, C.J.

1. The plaintiffs sue the defendants to recover possession by partition of 3/4 the of the property of one Akbaralli.

2. The defendant, who is Akbaralli's widow, is in possession of some of the property of the deceased. The defendants are in possession of a house which forms part of the same estate.

3. The plaintiffs' share in the inheritance is 3/4th that of the defendant3/4 th.

4. The defendant inter alia pleaded that the plaintiffs could not sue for partition without defendant receiving at least Rs. 2,000 for her dower for which she contended the property in her possession was liable.

5. Upon an issue 'Whether the defendant was entitled to dower, and if so, to what amount' the Subordinate Judge found that she was entitled to 40,000 Ashrafis (Rs. 3,00,000) but that the claim was time-barred. He also held that the dower had been remitted by the defendant but doubted whether the remission was effectual. He passed a decree for plaintiffs forth of the property mentioned in the plaint including the above-mentioned house which the plaintiffs sought to exclude from the actual partition.

6. The District Judge in dealing with the question of remission of dower says 'the evidence certainly shows that he (defendant) did pronounce the formula mentioned above thrice after the death of the deceased but it is not conclusively shown that such pronouncement was even in the presence of any of the heirs and it is not alleged that any of the heirs accepted that remission; This being so, the remission is ineffective. The estate is accordingly liable to a payment of Rs. 3,00.000 less the amount spent on obsequies.'

7. The only points argued before me were whether remission of dower by a widow without acceptance by the heirs of her husband was effective and whether the plaintiffs were entitled under Section 70 of the Indian Contract Act to recover Rs. 50 from the defendant as her contribution to repairs effected by the plaintiffs to the house in their possession.

8. The recognised authorities on Mahomedan law accessible to this Court all expressly recognise the right of a woman to remit her dower during the life-time of her husband (see Koran, Chapter III para 4, Sacred Books of the East, Vol. VI. p. 71; Hidayah Vol. I, Book II, Chapter III; Baille's Mahomedan Law Book I, Chapter VII, Section 10). Her right to remit dower after her husband's death is stated in Amir Ali's Mahomedan Law, 3rd Edition, Vol.I, p. 109, where it is said : 'a woman may release her dower to her deceased husband,' that is, the widow is entitled to exonerate or discharge the estate of her deceased husband from the liability for her dower debt.'

9. In considering whether dower can be remitted by a widow without acceptance by the husband's heirs it is necessary to refer to the Mahomedan law on the subject of the extinction and transfer of debts, treating dower as a debt due by the deceased.

10. According to Mahomedan law a debt remitted is a debt extinguished. No acceptance is required.

11. Baillie (Book VIII, Chapter III) citing Hidayah and Kefayah gives the following explanation : 'A debt considered with reference to the prospect of payment is mal or corporeal property and is susceptible of tumleek. Considered with reference to its present state it is wasf or quality (indebtedness), and is susceptible of iskat or extinction. Hence a gift to a debtor himself, which is an extinction, is valid, both by analogy and on a favourable construction; but a gift to another, which is tumleek, is valid only on the latter ground.'

12. This passage I understand to mean that an assignment of a debt to a third party is property capable of seisin and requires acceptance but a remission of a debt to a debtor results in its extinction. It is obvious that for the purpose of debt remission the heirs of a debtor must stand in the same position as the debtor himself.

13. To the above effect is a passage in Amir Ali, 3rd Edition, at p. 107. Again on p. 106 of the same work it is said 'the received doctrine is that even if the heirs of a debtor should reject a discharge of the debt, there would be no liability.'

14. I therefore hold that the District Judge was not warranted by the Mahomedan law in holding the revision of her dowry by the defendant to be ineffective.

15. In my opinion the point must be decided according to Mahomedan law and not by reference to the provisions of the Indian Contract Act.

16. If follows that the property is not liable to any lien for dowry and it is unnecessary to consider whether a lien for Rs. 3,00,000 should have been declared in a suit in which the defendant only claimed Rs. 2,000.

17. It remains to consider whether the plaintiffs are entitled to credit from the defendant for Rs. 50 in respect of repairs effected upon the house in their occupation. The facts as stated in the plaint are that the plaintiffs in their own right were entitled to 2 1/2 shares out of 3 1/2 shares in a house in Nasik and as heirs of Akbaralli to 4th of the remaining one share. Akbaralli died in 1897. The plaintiffs in 1898-99 effected repairs to the house which was old. (It does not appear whether the repairs were confined to the portion belonging to Akbaralli's heirs or extended to the whole 3 1/2 shares), The plaintiffs were and still are in exclusive possession of the whole house and seek to exclude Akbaralli's portion of it from partition in this suit though they say that ''on the share in the house defendant's share is a charge.' They allege that the defendant never objected to the repairs.

18. These facts do not justify the conclusion that the expenditure on repairs or any part of it was incurred 'for' the defendant so as to entitle the plaintiffs to claim compensation from her under Section 70 of the Indian Contract Act.

19. It is not in every case in which a man has benefited by the money of another that an obligation to repay that money arises: see Bam Tuhul v. Biseswar (1875) L.R. 2 I.A. 131, and S.S. Ruahon Co. v. L. Assurance [1900] A.C. 15.

20. I allow the appeal and set aside the decree of the District Judge and decree that the plaintiffs do recover by partition 3/4th of the property in the possession of the defendants and that the first defendant do recover by partition 1/4 th of Akbaralli's portion of the Nasik house No. 27/57 in the possession of the plaintiffs, that the defendant do pay Rs. 25 to the plaintiffs on account of expenditure on the obsequies of the deceased and that each party do bear their and her own costs throughout.


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