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Maria Munnisa Begum Vs. Noore Mohammad Saheb - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 326 of 1960 and Tenancy Right A.S. No. 197 of 1961
Judge
Reported inAIR1965AP231
ActsCode of Civil Procedure (CPC), 1908 - Sections 20; Indian Contract Act, 1872 - Sections 49; Muhammadan Law
AppellantMaria Munnisa Begum
RespondentNoore Mohammad Saheb
Appellant AdvocateP. Ramarao, Adv.
Respondent AdvocateG. Venkataramasastry, Adv.
Excerpt:
.....with respect to hiba properties - under section 20 of code of 1908 cause of action arose in pondicherry - held, pondicherry court has jurisdiction to entertain suit with respect to hiba properties. - - if appears from the evidence that the defendant was not happy about the plaintiff being taken back to baptla. 326 of 1960 for very good reasons. this contention appears to be good to the extend it goes, but it does not take note of the common law rule that a debtor has to seek out his creditor and pay and that therefore the creditor and pay and that therefore the creditor is entitled to institute the suit for the debt at the place of his residence. that this rule of english common law applies to this country is well-settled. it is well established that the rule that the debtor..........will get a further decree for rs. 4,584/- also against the defendant for value of the hiba jewels. appeal no. 326/60 is accordingly allowed and the decree of the court below in o. s. 52 of 1955 is modified to this extent. the plaintiff will get proportionate costs in this appeal. tr. appeal no. 197 of 1961. (25) we now come to transferred appeal no. 197 of 1961. the plaintiff-appellant asked for maintenance for one year at the rate of rs. 400/- a month. the court below granted at the rate of rs. 50/- a month from 6-8-1955 to 9-9-1955 and disallowed maintenance for the rest of the period. it appears that at the time of the arguments in the court below the learned counsel for the plaintiff confined his claim to three months' maintenance. these three months represent the period of.....
Judgment:

(1) These two appeals arise out of O. S. Nos. 52 of 1955 and 45 of 1956 on the file of the Subordinate Judge's Court, Bapatla. The appellant was the plaintiff in both the suits. The first suit was for recovery of the value of 39 tolas of gold which was alleged to be the mahar due to the plaintiff from her husband, who divorced her on 7-6-1955, and also for recovery of Jewels worth Rs. 5,000/- and wrist watch worth Rs. 6,00/-. The parties are Muslims. The plaintiff, who was about 18 years old, was married to the defendant-respondent on 4-5-1955 at Bapatla where her sister resided with her husband (P. W. 3) The day after the marriage, the defendant-respondent took the plaintiff to Pondicherry. On his way, he stopped at Hyderabad for about three days. After reaching Pondicherry, the husband and wife lived there for about two weeks. On 27-5-1955, the plaintiff's sister and her husband (P. W. 3) went to Pondicherry with the object of taking the plaintiff back to Bapatla for making the customary visits after the marriage. The evidence in the case shows that the unannounced arrival of P. W. 3 and his wife (plaintiff's sister) at Pondicherry annoyed the defendant-respondent. It is not necessary to refer to the background of mistrust or suspicion which the defendant-respondent, according to his evidence, had already entertained against the plaintiff.

The result of it all was that P. W. 3 and his wife did not receive a warn reception from the defendant- respondent. If appears from the evidence that the defendant was not happy about the plaintiff being taken back to Baptla. However, the plaintiff accompanied her sister and P. W. 3 to Baptla. After reaching Baptla, P. W. 3 wrote to the defendant, but the reason of the defendant does not appear to have been pleasant. On 2-6-1955, the defendant sent a telegram Exhibit B-3 to P. W. 3 asking him not to send the plaintiff to him. This was followed by Exhibit A-37 dated 7-6-1955 conveying to P. W. 3 that he had divorced the plaintiff by pronouncing 'Talak'. Exhibit A-37 was received by P. W. 3 on 9-6-1955, and the plaintiff was duly informed of its contents the same day. Thereafter, on 4-7-1955, the plaintiff caused a lawyer's notice. (Exhibit B-7) to be issued to the defendant demanding the mahar of 39 tolas of gold and also the return of the jewels of the plaintiff which the defendant had removed at Pondicherry and kept with him before the departure of the plaintiff from Pondicherry to Baptla. The defendant did not accede to these demands. Eventually, O. S. No. 52 of 1955 was laid by the plaintiff on 21-7-1955.

(2) The defendant resisted the suit by setting up that the marriage itself was not valid because it was brought about by misrepresentation, fraud and coercion and also because the consent of the contracting parties, viz., the plaintiff and the defendant, was not given before the requisite number of witnesses as required by Law. He further pleaded that he had agreed to pay only a mahar of 3 tolas of gold and not 39 tolas as claimed in the plaint. The other plea of his was that the jewels which were presented by him, were kept back at Baptla by the plaintiff when she proceeded with him to Pondicherry, and that, therefore, there was no question of the defendant removing the jewels and keeping them at Pondicherry. On this ground, he disowned liability for the claim regarding the jewels. He totally denied the claim regarding the wrist watch.

(3) O. S. No. 45 of 1956 related to the plaintiff's claim for maintenance from the defendant for a period of one year from 2-6-1955 at the rate of Rs. 400/- a month. In this suit also, the defendant raised the plea that the marriage was not valid and that the plaintiff was therefore not entitled to any maintenance. He further pleaded that the rate of maintenance claimed was excessive and that the rate could be only Rs. 50/- per month, and also pointed out that the plaintiff was not entitled to claim any arrears of maintenance, and that therefore maintenance for the period of one year could not be granted to her in any event.

(4) The learned Subordinate Judge passed decree in favour of the plaintiff in O. S. 52 of 1955 to the extent of the value of 39 tolas of gold at the rates of Rs. 84/- per tola. He however dismissed the suit so far as the value of the jewels was concerned on the ground that the jewels were left behind at Baptla by the plaintiff when she proceeded to Pondicherry with the defendant. He further held as a matter of law that on the allegations in the plaint, the civil Court at Baptla had no jurisdiction to entertain the suit so far as the claim for jewels were concerned. He therefore dismissed the suit in respect of the claim for the value of jewels.

(5) In O. S. No. 45 of 1956, the learned Subordinate Judge held that the plaintiff was entitled in law to maintenance only for the period from 6-8-1955 to 9-9-1955 and dismissed the claim for the rest of the period. He awarded maintenance only at the rate of Rs. 90/- per month.

(6) The plaintiff has preferred Appeal No. 326 of 1960 from the Judgment in O. S. 52 of 1955, and T r. Appeal No. 197 of 1961 is against the judgment in O. S. No. 45 of 1956.

(7) In these appeals, the plaintiff seeks from this Court the reliefs which were disallowed by the Trial Court in the respective suits, except the relief as to the wrist watch which has not been pressed in Appeal No. 326 of 1960 for very good reasons.

(8) Appeal No. 326 of 1960. The main question urged in this appeal relates to whether the Hiba jewels, which were admittedly presented by the defendant to the plaintiff at the time of their marriage, were removed by the defendant from the custody of the plaintiff and kept at Pondicherry where the defendant is residing. The trial Court came to the conclusion that the plaintiff did not take these jewels with her when she went to Pondicherry with the defendant, and that she kept them at Baptla where her sister lives and where her marriage with the defendant was performed. It is this finding that is strenuously canvassed in this appeal.

The appeal evidence in this case does not seem to be of much assistance in coming to a conclusion on the controversy between the parties. Each side has produced what may legitimacy be characterised as partisan evidence. That this is the true position is conceded by the learned counsel appearing on both sides. Both of them rightly pointed out that the safest course would be to go by the documentary evidence in the case and to regard it in conjunction with reasonable probabilities. The plaintiff as P. W. 7 stated that she had taken the Hiba jewels with her to Pondicherry when she accompanied the defendant. The defendant, on the other hand, has deposed that these jewels were not taken by the plaintiff to Pondicherry. The witnesses on the side of the plaintiff on the one hand and those of the defendant on the other have also given equally divergent versions.

(9-18) The proper course, therefore, appears to be to see which of the two conflicting versions is supported by documentary evidence and the circumstances and probabilities of the case. (His Lordships considered the documentary evidence and the probabilities of the case and proceeded).

In view of what I have stated above, I am inclined to disagree with the finding of the Court below and hold that the Hiba jewels were taken by the plaintiff to Pondicherry and that the defendant kept those jewels with him at Pondicherry and did not return them to the plaintiff when she left Pondicherry or at any time thereafter.

(19) The learned counsel for the respondent-defendant now argues that regarding the claim for jewels, the subordinate Judge's Court at Baptla had no territorial jurisdiction to entertain the suit. This contention was successfully advanced in the trial Court which held that it had no jurisdiction to entertain the suit in so far as it related to the value of the Hiba jewels. The argument on behalf of the respondent is based on Section 20 of the Code of Civil Procedure. It is pointed out that the defendant is residing at Pondicherry, that the alleged handing over of or detention of the Hiba jewels of the plaintiff took place at Pondicherry and that therefore the cause of action arose at Pondicherry, and nowhere else. Consequently, it is urged that the suit so far as it related to the jewels would lie only in the Pondicherry Court and not in the Court in Baptla. This contention appears to be good to the extend it goes, but it does not take note of the common law rule that a debtor has to seek out his creditor and pay and that therefore the creditor and pay and that therefore the creditor is entitled to institute the suit for the debt at the place of his residence. That this rule of English common law applies to this country is well-settled. In Bharumal v. Sakhawatmal, : AIR1956Bom111 , a Division Bench of he Bombay High Court consisting of Chagla C. J. and Dixit, J. pointed out that the common law rule is reasonable rule and it is in conformity with justice and equity because it recognises the obligation of the debtor to pay his debt and that obligation can only be discharged by the debtor going to his creditor and repaying the amount. Two earlier decisions of the same High Court in Dhunjisha Nussarwanjee v. A. B. Forde, ILR 11 Bom 649, Motilal v. Surajmal, ILR 30 Bom 167 also held that the common law rule applied to India and gave effect to that rule. These two earlier decisions of the Bombay High Court were referred to with approval by the Privy Council in Soniram Jeetmuli v. R. D. Tata and Co. Ltd., 54 Ind Application 265 : (AIR 1927 PC 156). Viscount Sumner after referring to ILR 11 Bom 649 and ILR 30 Bom 167 (supra), and the arguments based upon Section 49 of the Contract Act observed :

'Their Lordships do not think that in this state of the authorities it is possible to accede to the present contention that Section 49 of the Indian Contract Act gets rid of inference, that should justly be drawn from the terms of the contract itself or from the necessities of the case, involving in the obligation to pay the creditor the further obligation of finding the creditor so as to pay him.'

In Mohammed Ibrahim v. Jaithoon Bivi Ammal, : AIR1951Mad831 , Panchapakesa Ayyar, J. dealt with a case, the facts of which were very near the facts of the present case and held that the rule that the debtor must follow the creditor applies and that consequently the creditor, muslim wife, who was divorced by her husband could institute a suit for return of her mahar, jewels and clothes at the place where she resided. His Lordships followed a decision of the Calcutta High Court in Tulsiman v. Abdul Latif Mia, ILR 63 Cal 726 : (AIR 1936 Cal 97) which was a suit for mahar by a divorced wife of a muslim instituted in a Court within the local jurisdiction of which the wife resided at the time of the suit. This decision also is rested on the doctrine that debtor has to seek out the creditor to pay him. It is unnecessary to refer to all the authorities. Indian and English, referred to in this decision. If this principle is applicable to a suit for mahar, there appears no reason why it should not equally apply a suit for return of Hiba jewels. As stated by Pachapakesa Ayyar, J. in : AIR1951Mad831

'the divorced wife can bring the suit in respect of her prompt dower and, obviously therefore, also for her cloths and jewels at the place where she resides at the time of the divorce and receives notice thereof.'

The learned counsel for the respondent has relied upon a Division Bench ruling of the Madras High Court in Ramalinga Iyer v. Jayalakshmi, AIR 1941 Mad 695 : (1941) 1 Mad LJ 784. This decision does not at all indicate that the English common Law doctrine that a debtor should follow his creditor and pay him does not apply to India. If anything, the judgment of Leach C. J. indicates the contrary view. But the common law doctrine was not applied in AIR 1941 Mad 695 : (1941) 1 Mad LJ 784 because as a matter of inference and interpretation of the contract and circumstances of that case it was held that the debtor was to deliver the articles at particular place different from where the suit was laid. It is well established that the rule that the debtor should seek out the creditor so as to pay him will apply only where the contract does not specify the place of performance or such a place cannot be implied from the terms of the contract or the circumstances of the case. If the contract specifies that the debt is to be repaid or the goods are to be redelivered at a particular place, then the rule that the debtor should seek the creditor cannot be invoked. So also if by implication a certain place for repayment or redelivery can be predicated, the common law rule cannot come into operation. Therefore, in AIR 1941 Mad 695: (1941) 1 Mad LJ 784, their Lordships held that the goods were to be re-delivered at a particular place as a matter of necessary implication arising from the circumstances of the case, and consequently the rule that the debtor should seek out the creditor was not applied it follows that AIR 1941 Mad. 695 : (1941) 1 Mad L. J. 784 is not an authority for the proposition that the common law rule does not apply to this country or does not apply to a case like the present where the place for the return of the jewels was not specified nor could it be inferred as a matter of necessary implication from the circumstances of the case. To such a case, the common law rule that the debtor should seek out the creditor will apply.

(20) Halsbury, in Volume VII, Page 1956 stated the position as follows :-

' Where no place for performance is specified either expressly or by implication, from the nature and terms of the contract and the surrounding circumstances , and the act is one which requires the presence of both parties for completion, the general rule is that the promisor must seek out the promisee and perform the contract wherever he may happen to be. This rule applies not only to contracts for the payment of money but to all promises for the performance of which the concurrence of the promisee is necessary.'

(21) The English rule has been thus stated by Bowen, L. J. in The Elder, (1893) P. 119

'The general rule is that where no place of payment is specified either expressly or by implication, the debtor must seek his creditor. In Haldane v. Johnson, (1853) 8 Ex 689 it was held that a covenant for payment of rent, when no particular place of payment is mentioned, is analogous to a covenant to pay a sum of money is gross on a day certain in which case it is incumbent on the covenantor to seek out the person to be paid and pay or tender him the money. In the judgment in that case, the conclusion to the same effect, arrived at on the authorities by Parke, B in Poole v. Tumbridge, (1837) 2 M. and W. 223 is relied upon. Most of the cases are collected in Fessard v. Mugnier, (1865) 18 CBNS 286.'

(22) A Division Bench of the Calcutta High Court has dealt at length with the applicability of the common law doctrine that a debtor should find his creditor and pay him, in Jagadish Chandra Sikdar. v. Smt Santimoyee Choudhuri, : AIR1961Cal321 . This decision has also reviewed the relevant case law on the subject. The several authorities discussed there show that this rule is applicable to this country also, although it cannot be invoked in the case of negotiable instruments.

(23) I have no doubt that in the instant case the defendant is in the position of a debtor and the plaintiff in the position of a creditor. Therefore, the defendant, who was specifically called upon by the plaintiff, was found to deliver to her the Hiba jewels or pay their price at the place where she resided. The learned counsel for the respondent-defendant has conceded that so far as the suit relates to mahar, Baptla Court has jurisdiction. I fail to see why, on principle, that Court should not have jurisdiction in respect of the claim for jewels also. I therefore differ from the view of the trial Court and hold that the Court of the Subordinate Judge, Baptla, had jurisdiction to try the suit in respect of the Hiba Jewels.

(24) It follows from the foregoing that the plaintiff is entitled to a decree in respect of her claim for Hiba jewels. But the learned counsel for the plaintiff-appellant has not challenged the findings of the Court below that the value of the Hiba jewels is only Rs. 4,584/- and not Rs. 5,000/- as claimed in the plant; nor has the learned counsel for he respondent disputed the correctness of the value of the jewels assessed by the Court below. It follows that the plaintiff will get a further decree for Rs. 4,584/- also against the defendant for value of the Hiba jewels. Appeal No. 326/60 is accordingly allowed and the decree of the Court below in O. S. 52 of 1955 is modified to this extent. The plaintiff will get proportionate costs in this appeal.

Tr. Appeal No. 197 of 1961.

(25) We now come to Transferred Appeal No. 197 of 1961. The plaintiff-appellant asked for maintenance for one year at the rate of Rs. 400/- a month. The Court below granted at the rate of Rs. 50/- a month from 6-8-1955 to 9-9-1955 and disallowed maintenance for the rest of the period. It appears that at the time of the arguments in the Court below the learned counsel for the plaintiff confined his claim to three months' maintenance. These three months represent the period of Iddat. But the trial Court did not agree to this. In this appeal, the appellant-plaintiff has asked that she is entitled to three months' maintenance being the period of Iddat. It appears to be clear that a muslim wife who is divorced is entitled to get maintenance from her erstwhile husband during the period of Iddat. To get maintenance for this period, it is necessary that a suit must be instituted even before the period of Iddat commences. That would be virtually impossible because Iddat starts from the date of the divorce and it will not be possible except in extremely exceptional cases to institute a suit on the date of the Talaq is pronounced. The lower Court appears to have fallen into the error of thinking that if a suit is instituted say, one month after the divorce the plaintiff would lose her right to maintenance for that month which has already gone by. I do not think this is a correct view of the law. The wife in the circumstances of a case like the present is entitled to maintenance for three months from the date of the pronouncement of the Talaq.

In the present case, Talaq was pronounced on 7-6-1955. The plaintiff is therefore entitled to a decree for maintenance for a period of three months commencing from 7-6-1955. The rate of maintenance claimed in the plaint and pressed at the trial was Rs. 400/- a month. In the written statement, the defendant alleged that the proper rate of maintenance would be Rs. 50/- a month. The trial Court adopted the defendant's version. I do not think this was justified. The subordinate Judge himself stated that the defendant belonged to upper middle class and that plaintiff can be said to belong to average middle class. I do not think a sum of Rs. 50/- is proper maintenance for the wife of a gentleman of upper middle class or to a lady belonging to the ordinary middle class. The learned counsel for the plaintiff-appellant has pressed upon me Exhibit A-15 which is a pre-marital letter written by the defendant to P. W. 3. This letter appears to me an exercise in self-advertisement by the defendant. He pictures himself as almost business magnate with accounts in many famous overseas banks and with flourishing export and import trade with many foreign countries. But this letter itself says that he has invested only a sum of Rs. 30,000/- The possibilities of such a small investment do not seem well accord with the tall claims made by the defendant in Exhibit A-15. I do not think it will be fair to the defendant to catch him at his own vanity and make him liable to pay more than he reasonably can. 'The plaintiff has not been able to substantiate the plaint allegation that the defendant's monthly income is Rs. 2,000/- and that he owns buildings and lands and a bank balance of Rs. 4 lakhs. All these seem to be exaggeration on the part of the plaintiff in order to swell the rate of maintenance. Considering all the aspects of the matter, I think a sum of Rs. 100/- a month will be a fair and reasonable rate of maintenance to be awarded in the present case.

(26) The decree of the Court below is modified as indicated above. The parties will pay and receive proportionate costs in this appeal. The appellant will pay the court-fee due to the Government on the Memorandum of Appeal.

(27) Appeals allowed.


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