1. The plaintiff, Mt. Farmoodi Begam, a Pathan lady of Shajahanpur, was married to Mohammad Taqi Ahmad Khan, a Pathan, resident of Shajahanpur, on 24th June 1908. By this union a number of children were born and two grown-up daughters are now living. In April 1934 some differences, apparently of a trivial nature, arose between the husband and wife and, after a married life of over 25 years, the plaintiff left her husband's home and has brought this suit for recovery of Rs. 40,000 against him. Her case, shortly stated, is that at the time of marriage her dower was fixed, 'without any specification, at a sum of Rs. 80,000 and two dinars' and that by a custom prevailing in the family and amongst the Pathans of Shajahanpur half of this is to be treated as prompt and. half as deferred. Her husband refuses to pay this sum or any other sum and she is entitled to recover the same by an action at law against him. The defendant denied the lady's dower to be Rs. 80,000 and he alleged that it was only Rs. 15,000. He further alleged that the lady had agreed to remit the whole of her dower and while leaving the defendant's home she had taken a large amount of cash and ornaments and had thus paid herself off if she had any claim for dower. The custom pleaded by the lady was also denied and it was further contended that no valid demand for the payment of dower had been made and the lady had no cause of action for the suit. The trial Court found against the plaintiff on the issue of custom. It found against the defendant on the issue of the amount of dower, remission of dower and of its payment. On the issue whether a demand had been made previous to the suit or not it expressed no decided opinion, having taken the view that the present plaint itself could be treated as a demand. It further found that 1/5th of the dower should be treated as prompt and the remaining deferred. Accordingly it granted the plaintiff a decree for Rs. 16,000 with interest from the date of the suit. Against this judgment and decree, the plaintiff and the defendant have appealed and these two appeals are now before us for consideration.
2. Some matters were in controversy in the Court below which are no longer in dispute before us. It is now conceded that the dower of the lady fixed at the time of marriage was 'RS. 80,000 and two dinars without any specification,' that no portion of it has been remitted or paid off and that there exists no custom according to which a proportion could be fixed as to bow much of it was prompt and how much deferred and it is for the Court to determine the amount of prompt dower according to law. The questions which have been argued before us are largely questions of law, namely whether the plaintiff has got any cause of action and whether any portion of the lady's dower can be treated as prompt and, if so, how much.
3. The defendant contends that previous to the filing of the suit the plaintiff had in fact made no demand for payment of her dower and the demand set up by her is invalid in law. Further, that the plaintiff has no right to recover prompt dower after consummation of marriage and that the amount awarded to her by the trial Court as prompt dower is unduly excessive. The plaintiff, on the other hand, contends that the amount awarded to her by the trial Court is unduly inadequate and 1/3rd of her dower should be treated as prompt. At the very outset it is necessary to determine the question of fact whether a demand for payment of dower was in fact made by the lady before she raised the action. In para. 5 of the plaint inter alia the plaintiff alleged:
Since about a month the plaintiff has been compelled to demand repeatedly her prompt dower debt from the defendant. But he always put forward excuses and ultimately he refused to pay, hence this suit.
4. In para. 6 the plaintiff alleged:
The cause of action for this suit arose on or about 23rd September 1934 when the defendant refused to pay for the last time in Shajahanpur.
5. In her sworn statement in the suit dated 23rd January 1935 she stated as follows:
I demanded my dower debt Rs. 80,000 and two surkh dinars through my cousin Fazal Ahmad Khan. In reply to the same he (the defendant) asked me to file the suit.
6. The lady was not cross-examined on this point. The husband gave evidence and did not controvert this statement. At the same time, Fazal Ahmad Khan was not called at the trial, nor any further evidence was tendered, oral or documentary, in support of this demand. The learned Counsel for the defendant contends that this is all interested testimony and wholly unreliable and legally inadmissible. We do not think so. At the time of filing of the plaint the plaintiff and her advisers were fully conscious of the fact that a demand and refusal was necessary for the purposes of the claim. They say so in the plaint that demand was repeatedly made and refused. There was absolutely no reason to invent this false statement. Time was not running out, there were no other compelling reasons and it would have been the easiest thing in the world if this statement had been untrue to issue a written demand and to file the action a few days later. The defendant, as we have noted above, did not admit the amount of dower and did not further admit that any dower was due and not paid off. In the circumstances, it is very natural that he would not be in a mood to entertain any claim for dower on the part of the lady and would naturally refer her to a suit. We therefore are of opinion that there is no good reason why the lady's Statement on this part of the case should not be accepted in its entirety.
7. The next matter is whether this demand was sufficient and valid in law. The dower of the lady at the time of marriage was fixed at Rs. 80,000 and two dinars without any specification. There was no agreement between the parties and no custom exists under which it can be determined how much of it was to be treated as prompt and how much deferred and this apportionment has to be made by a decree of Court after a trial. Where the amount of dower to be treated as prompt is to be assessed by a decree of Court after contest, is it absolutely essential for the success of the claim to make a previous demand and if so in what terms? Whether the demand should be wholly dispensed with or whether it should be of a general nature for settlement of the claim without fixing or specifying any amount or whether an exaggerated and extravagant demand is permissible even up to the entire amount of the dower or whether the demand should be a reasonable and bona fide one? These were some of the questions which were debated at great length before us.
8. The defendant contends that in a claim for prompt dower under Mahomedan law, a previous demand and refusal by the plain, tiff is a part of the plaintiff's cause of action. A dower debt is one of those obligations in which a creditor has to seek his debtor and not the debtor his creditor and if a valid and proper demand has not been made antecedent to the suit the action is bound to fail for want of a cause of action. The defendant further contends that in a case where prompt dower is not fixed by agreement under custom and has got to be fixed by Court no valid and proper demand can be made till the amount is fixed and therefore an action would not lie at all for the recovery of prompt dower and a dower therefore in such a case must be taken to be a deferred dower. Alternatively, he contends that a plaintiff must, before raising the action, fix up a bona fide and reasonable amount as her prompt dower and demand the same before filing a suit to recover it and an exaggerated demand embracing the entire amount of dower can never be a valid demand for a claim of half the amount of dower which later on the plaintiff decides to bring in Court. The plaintiff, on the other hand, contends that dower debt is like any other money, a debt with a promise to pay an demand, and in a case like this the demand is not an essential part of a cause of action. An action for recovery of debt would lie without making a previous demand. The basic principles which govern these contentions have been the subject of discussion by high judicial authority. In a Full Bench decision in Nawab Bahadoor Jung Khan v. Mt. Uzeez Begum (1843-46) S.D.N.W.P. 180 (F.B.) the nature of prompt dower is explained as follows:
Nevertheless the Court consider the nature of the exigible dower to be that of a debt payable generally on demand after the date of the contract, which forms the basis of the obligations and payable at any period during the life of the husband, on which that demand shall be actually made, and therefore until the demand be actually made and refused, the ground of an action at law cannot properly be said to have arisen, nor the law of limitation become applicable. The Court remark that in an ordinary bond for debt, the lender has stipulated or demanded to be repaid on the particular date specified in the bond, and there is an actual infraction of the agreement equivalent to refusal of the requirement to repay should the debtor fail to liquidate the loan on the stipulated date ; and here clearly commences the ground of an action in Court for recovery of that which is due; but in the case of an obligation to pay on demand, such as the Court regard the obligation to pay the exigible dower to her, there is no infraction of the obligation until the demand be made and refused, and consequently no cause of legal suit has arisen.
9. In Mt. Mulleeka v. Mt. Jumeela ('73) I.A. Sup. Vol. 135 at p. 140 the Privy Council approved of the above decision of the Sadar Dewani Adalat in the following words:
Their Lordships are of opinion that the case in Nawab Bahadoor Jung Khan v. Mt. Uzeez Begum (1843-46) S.D.N.W.P. 180 (F.B.), above cited, was rightly decided, and that, in respect of prompt dower payable under the Mahomedan law, limitation does not begin to run before the dower is demanded, or the marriage is dissolved by death or otherwise.
10. In Ranee Khajoo-roon-nissa v. Ranee Rayees-oon-nissa ('74-75) 2 I.A.235 at p. 239 Sir James Montague E. Smith in delivering the judgment of the Judicial Committee observed as follows:
Prompt or exigible dower may be considered a debt always due and demandable, and certainly payable upon demand, and therefore upon a clear and unambiguous demand and refusal a cause of action would accrue, and the statute would begin to run.
11. In Ameer-oon-nissa v. Moorad-oon-nissa (1854-57) 6 M.I.A. 211 at p. 229 Knight Bruce L.C.J. in delivering the judgment of the Judicial Committee observed as follows:
The terms of the deed are 'when demanded by my wedded wife.' In this country various cases have arisen with regard to obligations payable on demand; a promissory note not payable on demand, is payable immediately. It is important however in some cases of negotiable securities, that the demand be made within a reasonable time, in other cases that the demand should be made immediately, and in some without any demand at all : Carter v. Ring (1813) 3 Camp. 459; Gibbs v. Southam (1834) 5 B. & Ad. 911; Simpson v. Routh (1824) 2 B & Cr. 682. in the latter case Littledale J. lays it down, that in the case of a bond with a penalty to pay a certain sum on demand, an express demand must be made before the action can be maintained. So in an action on a promise to pay a collateral sum on request. These authorities show that there may be cases where an action would not lie except where a request or demand is made, and others where such demand is not necessary. It is quite unnecessary that it should be any demand here. The deed of dower or settlement was by the husband in favour of his wife, and the intention of the parties was that the wife was to have, as a dowry, the sum of Rs. 46,000, and it is important to consider how inconvenient it would be if a married, woman was obliged to bring an action against her husband upon such an instrument; it would be full of danger to the happiness of married life; and we think, upon the true construction of this settlement, she had a right of suit without a previous demand, and that she was not obliged to sue her husband immediately or in his lifetime.
12. The cases in Nawab Bahadoor Jung Khan v. Mt. Uzeez Begum (1843-46) S.D.N.W.P. 180 (F.B.), Mt. Mulleeka v. Mt. Jumeela ('73) I.A. Sup. Vol. 135 and Ranee Khajoo-roon-nissa v. Ranee Rayees-oon-nissa ('74-75) 2 I.A. 235, referred to above, were cases in which the wives were suing for their dowers and the question for consideration in the cases was whether their claim was barred by limitation on the language of the statute of limitation of those days, namely 12 years from the date of the cause of action. In Ameer-oon-nissa v. Moorad-oon-nissa (1854-57) 6 M.I.A. 211 the heir-at-law was suing the widow who had taken possession of the estate after the death of the husband in lieu of her dower and the possession of the widow was in lieu of her entire dower and there was no question of prompt dower involved in it. The precise question which is now before us, namely whether in an action for recovery of prompt dower where it has not been specified under an agreement or by a custom, a previous demand is or is not a part of the cause of action, was not before the Court and was not decided. And so far as the question of limitation in relation to demand is concerned, the matter is now governed by Article 103, Limitation Act. It gives effect to the principles laid down in the above rulings. In In re Brown's Estate (1893) 2 Ch. D. 300 at p. 304 Chitty J. observed as follows:
It is plain that a distinction has been taken and maintained in law, the result of which is that, where there is a present debt and a promise to pay on demand, the demand is not considered to be a condition precedent to the bringing of the action. But it is otherwise on a promise to pay a collateral sum on request, but then the request ought to be made before action is brought. I think the distinction, which I have mentioned, is sufficiently pointed out in Saunders' argument in Birks v. Trippet (1666) 1 Wms Saund 32 which was accepted by the whole of the Court, the Judges having been apparently somewhat impatient at the learned Counsel labouring his argument to the extent he did.
13. Speaking of the above case in Bradford Old Bank Ltd. v. Sutcliffe (1918) 2 K.B. 833 Pickford L.J. observed as follows:
It was argued on behalf of the defendant that the words 'on demand' should be neglected because the money was due, and therefore a demand was unnecessary and added nothing to the liability. This proposition is true in the case of what has been called a direct liability, for example, for money lent. There the liability exists as soon as the loan is made, and a promise to pay on demand adds nothing to it, as in the case of a promissory note for the amount payable on demand, and the words 'on demand' maybe neglected. It has however been held long ago in cases more particularly mentioned by the other members of the Court that this doctrine does not apply to what has been called a collateral promise or collateral debt and I think a promise by a surety to pay the original debt is such a collateral promise or creates such a collateral debt. This has been so decided by Chitty 3. in In re Brown's Estate (1893) 2 Ch. D. 300 a case which we are invited to overrule. I think however it was rightly decided and in accordance with the principle of the earlier cases.
14. We do not think that these cases are any authority for the proposition contended for by Mr. Banerji that in a case of debt payable on demand, the demand as a matter of law can never be a part of cause of action and can always be disregarded. We are of opinion that the statement of law which is applicable on this matter is to be found in the judgment of Atkin L.J. in N. Joachimson v. Swiss Bank Corporation (1921) 3 K.B. 110 at p. 129. Says his Lordship:
The question appears to me to be in every case,. did the parties in fact intend to make the demand a term of contract? If they did, effect will be given to their contract, whether it be a direct promise to pay or a collateral promise, though in seeking to ascertain their intention the nature of the contract may be material.
15. The question therefore which arises for our consideration is whether dower debt is one of those obligations in which a creditor has to seek his debtor and the demand is an essential part of the contract or it is one of those debts in which the debt is always payable and demand is not a vital part of the contract and cause of action. When the prompt dower of a Mahomedan wife is an ascertained sum under a contract or under a custom it may be possible to hold under the terms of contract as a matter of construction that the demand for payment of dower was a part of the contract and an integral part of the cause of action. Even in such a case it may be possible to hold as a matter of Mahomedan law having regard to the relation of husband and wife that it is such a relationship in which the creditor has to seek the debtor and the debtor has not to seek the creditor and in such a case an antecedent demand may be necessary to make a cause of action. But these considerations do not apply to a case where the prompt dower has not been fixed either under agreement or by custom and the Court has got to determine the amount after contest. In such a case demand can only be for settlement of claim of dower and for fixation of amount by negotiation and agreement and very often, having regard to strained relations which exist in such cases, will be wholly futile. In such a case we cannot say as a matter of Mahomedan law that a previous demand and refusal for payment of an unascertained sum of dower is part of the contract of payment of dower and is necessarily a part of the cause of action of the plaintiff. A suit in such circumstances is at once a suit for determination of the amount and for its recovery, and for the success of such a suit a previous demand and refusal of an ascertained sum of money is not a condition precedent.
16. The next question is, if demand be necessary what should be the nature and terms of the demand. In a case, where prompt dower has not been fixed under agreement or by custom, and there is no fixed rule as to how much of it is to be treated prompt and how much deferred, the Mahomedan law lays down no definite rule and the Courts in India have taken conflicting views. A Full Bench of the Madras High Court is of opinion that the whole of it should be treated as prompt : see Masthan Sahib v. Assan Bivi Ammal (1900) 23 Mad. 371. Other Courts in India hold the view that a certain proportion only should be treated prompt, but as to this proportion there is no fixed rule and it varies with the circumstances of the case and the discretion of the Court. In some cases, even where discretion is allowed, full amount has been decreed as prompt see Husseinkhan v. gulab Khatun ('11) 35 Bom. 386, and sometimes half has been decreed as prompt: see Mt. Maimuna Begam v. Sharafat Ullah : AIR1931All403 . There being no fixed rule as to the proportion of dower which will have to be determined after contest in Court, what should be the limitations on the demand which a wife is under necessity to make? In our opinion it will be sufficient if she makes a demand generally for the settlement of her prompt dower without limiting herself to any definite sum or she may treat her entire dower as prompt and make a demand for it or she may make a demand for a lesser sum and in each case a demand so made will entitle her later on to reduce her claim before enforcing it without being under the necessity to make a fresh demand of the precise sum which she eventually decides to enforce by an action in Court.
17. In the present case we have found that the plaintiff had asked her husband for the payment of her entire dower and the husband had definitely refused to entertain her claim in any shape or form and had referred her to a suit. In these circumstances it was not necessary for the plaintiffs to make a fresh demand later on when she decided to file the suit and under advice received decided to reduce her claim to half the amount of dower. The previous demand of this lesser sum and refusal in this case is not an integral part of the plaintiff's cause of action. Her real cause of action is the refusal on her husband's part to co-operate in determining the amount of prompt dower and such a suit, in our opinion, cannot fail simply because a previous demand had not been made for the payment of the precise sum which was claimed in the plaint. In our opinion, the demand which we have found above the plaintiff to have made was quite sufficient to satisfy the condition if demand be taken to be an essential part of the cause of action. In this view, it is not necessary to express an opinion upon a point decided in the plaintiff's favour by the trial Court, namely that the plaint in the present action can be treated as a demand and whether the rule laid down in Simpson v. Routh (1824) 2 B & Cr. 682 at p. 537 is applicable to the case. The other matter for consideration is what is the effect of consummation of marriage on the right of the wife to recover her prompt dower. Sir Syed Wazir Hasan contends that it is the right of a Mahomedan wife to refuse restitution of conjugal rights till her prompt dower is paid and once she has submitted to the consummation of marriage this right is lost in the sense that dower as a prompt dower ceases to be recoverable and it can only, after consummation, be recovered as a deferred dower. In support of this contention he has relied upon two passages in the judgment of Sir Shah Sulaiman in Anis Begam v. Md. Istafa : AIR1933All634 :
I propose to consider first of all the question whether under the Mahomedan law the right of a wife to insist on the payment of the prompt portion of her dower subsists even after consummation of marriage.
18. The passage at page 765 is:
The absolute right of a wife to insist on the payment of the whole of the prompt portion of her dower before restitution of conjugal rights (except when the husband wants to take her out on a Journey to another town) is lost after the consummation of the marriage, unless the consummation took place when she was a minor or of insane mind so as to be incapable of giving consent.
19. It is obvious to us that when Sir Shah Sulaiman is speaking of the right being lost after consummation he is speaking of the loss of right as a defence to a suit for restitution of conjugal rights and he did not mean in this passage to hold that the right was lost as a basis for an independent suit for recovery of her dower money, but as Sir Wazir has strongly pressed for our consideration this matter we propose to take a little more detailed notice of it. There is some conflict among Mahomedan jurists as to the right of a Mahomedan wife to insist on the payment of her prompt dower as a defence to a suit for restitution of conjugal rights after consummation has once taken place. In a Full Bench case of this Court in Abdul Kadir v. Salima ('86) 8 All. 149 Mahmood J. in delivering his well-known judgment which was adopted by the Full Bench has accepted the view of those jurists who lay down that after consummation of marriage a wife cannot resist a, suit for restitution of conjugal rights on the plea of non-payment of her prompt dower money. The actual dictum of Mahmood J. is in the following words:
According to ordinary rule of interpreting Mahomedan law, I adopt the opinion of the two disciples as representing the majority of 'the three masters,' and hold that, after consummation of marriage, non-payment of dower, even though exigible, cannot be pleaded in defence of an action for restitution of conjugal rights; the rule so laid down having, of course, no effect upon the right of the wife to claim her dower in a separate action.
20. The earlier portion of this dictum which deals with the loss of wife's right to dower as a defence to an action for restitution of conjugal rights has not received universal assent and was the subject of discussion by Sir Shah Sulaiman in Anis Begam v. Md. Istafa : AIR1933All634 and it was in connexion with the discussion of this earlier portion of the dictum that those observations were made by Sir Shah Sulaiman which we have quoted above. The later portion of the dictum of Mahmood J., namely,
the rule so laid down having, of course, no effect upon the right of the wife to claim her dower in a separate action,
was not in any way discussed or considered by Sir Shah Sulaiman and remained entirely unaffected by the observations made by him and quoted above. The prompt dower of a Mahomedan wife is a debt re-coverable like all debts by an action at law. In addition to this right which she has to recover her dower by a suit she has an additional right to refuse restitution of conjugal rights until her dower is paid. As regards this later right, namely to resist consummation and to resist suits for restitution of conjugal rights Mahomedan jurists differ amongst themselves but as to her right to recover her prompt dower by an action there is no difference whatever. In Ameer Ali's book on Mahomedan Law, third edition, vol. II at page 487 the law is stated as follows:
The prompt portion of the mahr may be realized by the wife at any time before or after consummation; the deferred portion remains unpaid until the dissolution of the contract or such other time as its payment may have been postponed to.
21. In Wilson's Anglo-Mahomedan law at p. 127, para. 48 the law is stated as follows:
In addition to her right to recover the prompt dower by regular suit, the wife may refuse to admit her husband to sexual intercourse, to obey his orders, or even to live in the same house with him, so long as it is unpaid; and this without forfeiting any right to be maintained at his expense or her right of inheritance as his wife. But it seems to be now settled that she cannot exercise this right of refusal after sexual intercourse has once taken place with her free consent.
22. In Abdul Kadir v. Salima ('86) 8 All. 149, Mahmood J. observes as follows:
These rulings leave no doubt that although prompt dower may be demanded at any time after the marriage, the wife is under no obligation to make such demand at any specified time during coverture, and that it is only upon making such demand that it becomes payable in the sense of performance being rendered in fulfilment of an obligation. The right of dower confers another right upon the Mahomedan wife, and the nature of this second right is described in the Hedaya in a passage on which the learned pleader for the respondent has relied for his contention.
23. The learned Judge then refers to that passage in Hedaya where it is said that it is the wife's right that she may deny herself to her husband until she received the dower and so on. It seems to us that under Mahomedan law consummation of marriage cannot possibly have the effect of making the prompt dower as deferred and the wife has an absolute right to bring an action for the recovery of prompt dower even after consummation whenever she chooses to do so. There remains now the question as to the amount of dower which should be treated as prompt and be allowed to the plaintiff in the present suit. The rule for the guidance of the Court in this matter is stated in Mulla's Principles of Mahomedan law, Edn. 11, at p. 221, para. 221(2) in the following words:
But according to the Sunni law, the rule is to regard part as prompt and part as deferred, the proportion referable to each class being regulated by custom, and in the absence of custom, by the status of the parties and the amount of the dower settled.
24. In Mt. Maimuna Begam v. Sharafat Ullah : AIR1931All403 the rule is stated in the following words:
The Court should fix the proportion to be treated as the prompt dower having regard to the status of the family, the amount of the dower and custom, if any, prevailing in the plaintiff's family.
25. Mr. Banerji contends that under Mahomedan law status of parties is not a relevant consideration in determining the amount of prompt dower and Mahomedan law only requires the consideration of the status of the woman and of the amount of dower. He relies upon the text of Fatwa Alamgiri as translated in Shama Churn's Mahomedan Law at p. 359. The text of Fatwa Alamgiri relied on by Mr. Banerji has also been translated in Ameer Ali's Mahomedan Law, Edn. 3, vol. II, p. 483 and is as follows:
Under the Hanafi doctrines, each case will be decided on its own individual merits. When it has been explained how much of the dower is prompt, says the Alamgiri citing the Fatawai Kazi Khan that much should be promptly paid. When this has not been done/regard should be had to the (qualifications of the) woman and the dower mentioned in the contract, with the object of determining how much of such dower should be considered prompt in the case of such woman; and the amount so determined is to be prompt accordingly, without regard to the proportion of a fourth or a fifth, but what is customary is also to be considered. But when it is stipulated that the whole is to be prompt, the entire dower should be promptly paid without any regard to custom.
26. We agree with Mr. Banerji that the essential matters under the Mahomedan law are the status of the woman and the amount of the dower which was fixed. But we do not agree with him that it is not permissible to the Court to look to other circumstances in the case and we certainly do not agree with him that in considering the amount of the dower in a particular case if the amount of dower happens to be unduly excessive and high, the Court cannot take judicial notice of the fact that the amounts of dowers in this province are often fixed at a notoriously high figure beyond the means of husbands with a view to act as a check to divorce or with a view to keep up the family custom and for the sake of dignity rather than with any intention of exacting payment.
27. Mr. Banerji then contends that the amount awarded to the plaintiff as her prompt dower bears a proportion of 1/5th and this is unduly low and he has referred to us certain reported cases in which a proportion of 1/3rd was allowed, and he contends that excepting in an old case where 1/5th was allowed the practice has been to award generally 1/3rd in such case. We do not think there is any such practice as he contends for, and we do not think any good purpose will be served by taking as precedent the proportion fixed in reported cases. Each case will have to be considered on its own merits. In the present case the learned Judge has found that the plaintiff comes from a poor family; her father was a mere karinda of a landlord at Shahjahanpur and at the time of his death he was bankrupt. The learned Judge has further found that ' the amount of dower of Rs. 80,000 was unduly high and that the plaintiff left her husband's home without any justifiable cause and that Rs. 16,000 having regard to all the circumstances of the case was an adequate proportion to fix for her. Having given our best consideration to the question, we have come to the conclusion that the decision arrived at by the trial Court in this matter is substantially just and it would not be proper to disturb its finding. We therefore affirm the decree of the Court below. Both appeals therefore fail and are dismissed with costs.