1. The appeal has arisen from a suit brought by the two plaintiffs-appellants, who are husband and wife for recovery of Rs. 8,333-5-4, which represents their share of inheritance in the dower of Rs. 25,000 due to their deceased daughter, Aijaz Patima, who was admittedly married to Farzand Hasan, defendant 1. They claimed a right to recover that sum from the person and property of defendant 1 and the assets left by his father, Sibte Hasan, on the allegation that defendant 1 was an infant in 1914, when he was married under the guardianship of Sibte Hasan, who had bound himself personally to pay the dower. In the alternative, the plaintiffs rest their case on the rule of Mahomedan law applicable to Shias, that a guardian contracting marriage for his minor ward is personally liable if the child husband has no means of paying the stipulated dower. Defendants 2 to 4 are the other heirs of Sibte Hasan. They have been impleaded because they and defendant 1 are in possession of the assets left by Sibte Hasan. Mt. Aijaz Patima was married to defendant 1 in August 1914. She died in 1926 leaving a daughter, defendant 5. The suit which has given rise to this appeal, was instituted on 16th March 1929 for the relief already stated. It was contested by all the defendants except No. 3. It was not admitted that Sibte Hasan had acted as the guardian for the marriage of defendant 1 with Mt. Aijaz Patima. It was alleged that the marriage was contracted by Nurul Hasan, a granduncle of defendant 1. It was denied that Sibte Hasan has incurred any personal liability for the dower, or that he was liable under any rule of law, even though he acted as guardian for the marriage of defendant 1. Mt. Aijaz Patima was said to have reduced the amount of dower to Ra. 2,500, which she made a gift of to her daughter, defendant 5, Limitation was also pleaded.
2. The learned Subordinate Judge found that Sibte Hasan had acted as the guardian of defendant 1 on the occasion of his marriage with Aijaz Fatjma. He also found that the dower of Rs. 25,000 had not been reduced by Mt. Aijaz Patima in her lifetime, nor had she made a gift of any portion of it to defendant 5. The plea of limitation was also overruled. As regards the liability of Sibte Hasan under the rule of Shia law, relied on by the plaintiffs, the learned Judge held that his assets were not liable. He decreed the plaintiffs' claim as against defendant 1 and dismissed it as against the assets of Sibte Hasan. The plaintiffs reiterate their claim in this Court as against the assets of Sibte Hasan in the hands of the defendants. The finding of the learned Subordinate Judge, in so far as he held that, Sibte Hasan acted as the guardian for defendant 1, has been assailed before us but in our opinion it is correct. Our attention has been drawn to an entry in the register in which the marriage was noted. It records the name of certain persons who were present on that occasion. The name of Sibte Hasan is not among them. It is argued that if Sibte Hasan had been present, his name would have found a prominent place in the register. This circumstance is relied on in corroboration of the evidence led on behalf of the defendants to establish their plea that the marriage had been contracted by Nurul Hasan and not by Sibte Hasan, who was not even present. We are satisfied that the reasons given by the learned Subordinate Judge for arriving at his finding on this part of this case are not affected by the omission of the name of Sibte Hasan from the register. As is pointed out by the learned Subordinate Judge, Nurul Hasan could not be a guardiari under the Mahomedan law for the marriage of defendant 1 so long as his father was alive. In fact, for a valid marriage of defendant 1 in 1914 no one else could have acted as his guardian Sibte Hasan's name was probably not noted in the register, because he acted as guardian and was not a mere witness or spectator whose name could find a place in the register as one of those who witnessed the marriage. We hold that Sibte Hasan contracted the marriage of his infant son with the deceased Aijaz Fatima.
3. The finding of the learned Subordinate Judge that Sibte Hasan had not expressly assumed liability for the dower was not impugned before us, and the plaintiffs' claim was rested: solely on his liability arising from the rule of Mahomedan law, to which reference has already been made. Shuraya-ul-Islam, which is an authority on questions of Shia law, gives the following rule on the subject under consideration:
If one should contract his infant son in marriage, and the child has independent means of his own, he is liable for the dower. If the child is poor, the obligation rests entirely on the father, and, in the event of his death, must be discharged out of the whole of his property, whether the child should arrive at maturity and become wealthy, or die before it.... (Baillie, Part 2, p. 80, quoting from Shuraya Ool-Islam).
4. Mr. Khwaja who argued the appellants' case with great ability, referred us to Sharah Loma which gives the same rule. We have not been referred to any book of authority on Shia law, nor have we been able to find any, which may be in conflict with Shuraya-ul-Islam and Sharah Loma on this point. We must, therefore, take it that, if the case is governed by Mahomedan law, pure and simple, the rule given in Shuraya-ul-Islam is in favour of the plaintiffs. According to the rule laid down in Shuraya, the father makes himself a surety for the due payment of dower in case his minor son has no means of paying it. The underlying principle is that the son's inability to pay must have been known to the father, and if, in spite of such knowledge, he agreed, on behalf of his indigent son, to pay what was beyond the latter's means, he should be deemed to have guaranteed the payment of the stipulated dower. There is divergence of views between Shia and Sunni doctors on this point. According to Sunni law, the father, if he acts as guardian for the marriage of his infant son, is personally liable only if he expressly becomes a surety for the dower stipulated for: otherwise the father merely acts on behalf of his minor eon and binds the latter and not himself personally. In the case of Muhammad Siddiq v. Shahabuddin : AIR1927All364 it was held by a Bench of this Court that a Mahomedan father does not, by simply giving his consent to the marriage of his minor son without making himself a surety for the payment 'thereof, become liable for the payment of his daughter-in-law's dower. The judgment does not mention the fact that the parties to that case were Sunnis; but we have sent for the paper book and have satisfied ourselves that it was a case in which a Sunni father had contracted the marriage of his minor Sunni son. The learned Subordinate Judge has relied on this case in holding that it is comprehensive enough to apply both to Shias and Sunnis; but we do not think that this view can be supported. That case must be considered to be an. authority only in cases in which Sunni law is applicable. The next question is whether the rule enunciated in Shuraya-ul-Islam must be administered by Courts in this province. All branches of Mahomedan law do not apply to cases arising between Mahomedan parties. Only such of them as have been declared by statute to be so applicable can be administered by British Indian Courts. Section 37, Bengal N.W.P. and Assam Civil Courts Act (No 12 of 1887) has made provision in this behalf. It runs as follows:
(1) Where in any suit or other proceeding it is necessary for a civil Court to decide any question regarding succession, inheritance, marriage or caste or any religious usage or institution, the Mahomedan law in cases where the parties are Mahomedans, and the Hindu law in cases where the parties are Hindus, shall form the rule of decision, except in so far as such law has, by legislative enactment, been altered or abolished. (2) In cases not provided for by Sub-section (1) or by any other law for the time being in force, the Court shall act according to justice equity and good conscience.
5. If the rule quoted from Shuraya-ul-Islam be deemed to be one regarding 'marriage' or 'any religious usage or institution,' it shall have to be given effect to in deciding the present case. We do not think that the question arising in this case can be considered, without unduly straining the language of the section, to be one regarding 'religious usage or institution.' Mr. Khwaja relied on the decision of Mahmud, J., in Gobind Dayal v. Inayatullah (1885) 7 All. 775 which was a case of preemption. Mr. Mahmud, J., held that the words 'religious usage or institution' should receive a liberal interpretation so as to include preemption even in cases in which the vendee was non-Muslim and that the Court is bound to administer Mahomedan law of pre-emption as between a Mahomedan pre-emptor and a non-Muslim vendee. The majority of the Full Bench however so far disagreed with Mahmud, J., that they held that the Court is not bound to administer Mahomedan law in such cases, but, in the absence of statutory law to the contrary, should administer Mahomedan law as embodying rules of justice, equity and good conscience. Section 24 (now Section 37), Bengal, N.W.P. and Assam Civil Courts Act, was considered by Mahmud, J., and presumably by the other learned Judge. If the ruling had been otherwise applicable, we would have felt bound by the opinion expressed by the majority of the Full Bench, specially because that opinion has been accepted in other subsequent cases : see Abbas Ali v. Maya Ram (1890) 12 All. 229 and Pir Khan v. Faiyaz Husam Khan A.I.R. 1914 All. 289. Mr. Khwaja has also quoted numerous rulings in which Mahomedan law has been applied to cases involving questions of gifts, wakfs, wills, guardianship, etc. Though Section 37, Bengal, N.W.P. and Assam Civil Courts Act is not specifically referred to, it is clear that in each of them either the subject fell within the purview of the first sub-section and the Courts were bound to apply Mahomedan law, or the subject was one as to which there is no statutory law, and the Courts were at liberty to administer Mahomedan law as embodying rules of justice, equity and good conscience, the parties being Mahomedans. None of these cases is directly in point or decides a principle which may be applicable to the case before us Howsoever liberal a construction may be placed on the words 'religious usage or institution,' they cannot include a case of purely pecuniary liability of a guardian contracting the marriage of his minor son.
6. The only contention which, in our opinion, can be put forward is that the question arising in this case is one 'regarding marriage' but it seems to us that the rule laid down in Shuraya-ul-Islam is no more than a canon of interpretation. The author is of opinion that where a guardian for marriage agrees, on behalf of his minor ward, to pay a certain amount of dower, there is an application that, in case the minor has no means to pay, the guardian would be deemed to be a surety for due payment. The Sunni doctors, on the other hand, do not construe such an agreement as implying a personal undertaking. The rule may also be considered as a rule of evidence in so far that a personal under taking by the guardian to pay dower, in case the minor is found to have no means of paying it, should be presumed. In any view of the matter, the vicarious liability of the father arises not from any substantive rule of Shia law relating to marriage, but is the result of deduction from given circumstances, and as such British Indian Courts are to be guided not by Mahomedan law but by rules of construction generally applicable or by the Evidence Act. We entertain no doubt that a Shia father entering into any other contract, as guardian of his minor son, involving a pecuniary obligation, cannot be saddled with personal liability by British Indian Courts. The agreement to pay dower in the same circumstances cannot be placed on a different footing. The liability, if it exists, arises from a civil contract and should be determined by the law applicable to contracts made by an authorized guardian. There is no rule of general law in force in this Province which justifies an inference that a guardian, entering into a contract on behalf of his minor son, renders himself liable as surety in the absence of an express contract to that effect, nor is there anything in the Evidence Act which justifies a presumption from the circumstances of such a case that a guardian makes himself personally liable.
7. If there had been a question of applying the rule of Mahomedan law under consideration as a rule of justice, equity and good conscience, we do not think that it can be regarded, except in special conditions, as a rule of justice, equity and good conscience. It is quite unjust to enable the wife, and even her heirs (in this case her parents) to follow the property of her husband's father in the hands of his heirs other than the husband. The rule will work a peculiar hardship in this province, where fabulous dowers are common. If those acting on behalf of the infant bride have any reason to apprehend that the minor would not be liable to pay the stipulated dower, they should insist on the father, who acts as guardian for the marriage of his minor son giving a personal undertaking so as to make him a surety. The question can arise mostly in those cases in which neither side applied its mind to that aspect of the matter, and in that class of cases it is not just and equitable to saddle the guardian with responsibility which he had not foreseen and which, if he had any reason to think would be enforced against him, he might not have undertaken. Accordingly we uphold the finding of the learned Subordinate Judge, though for different reasons. On the question of limitation it is enough to say that the suit was brought within three years of the death of Mt. Aijaz Fatima. No demand for dower had ever been made by her. Time began to 'run from the date of her death, and the suit having been brought within three years from that date is 'obviously not barred. The result is that this appeal fails and is dismissed with costs.