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Shankar Dial Vs. Muhammad Mujtaba Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1896)ILR18All400
AppellantShankar Dial
RespondentMuhammad Mujtaba Khan and ors.
Excerpt:
civil procedure code, section 17 - jurisdiction--muhammadan law--dower--suit for recovery of dower debt from the assets of a deceased mhammadan. - - the result is that the appeal, which relates only to the dower debt, must fail and it is hereby dismissed with costs. the respondents will pay and receive costs proportionate to their failure and success......purchased from musammat afsari begam, the wife of sadar-ud-din khan, deceased, a portion of the dower debt alleged by her to be due out of her husband's estate, and her one-fourth share in that estate as heir to her deceased husband, by a sale-deed, dated the 1st of january 1893. he claimed rs. 30,000 on account of dower, and he further claimed a one-fourth share in certain movable and immovable property alleged to have been left by the deceased sadar-ud-din. the lower court dismissed the claim in regard to rs. 25,000 out of the amount of the dower claimed and decreed the rest of the claim. this appeal has reference only to the dower debt.2. on behalf of the respondents objections have been taken under section 561 of the code of civil procedure, but the only objection argued by mr......
Judgment:

Banerji and Aikman, JJ.

1. This appeal arises out of a suit brought by Shankar Dial, the appellant, who purchased from Musammat Afsari Begam, the wife of Sadar-ud-din Khan, deceased, a portion of the dower debt alleged by her to be due out of her husband's estate, and her one-fourth share in that estate as heir to her deceased husband, by a sale-deed, dated the 1st of January 1893. He claimed Rs. 30,000 on account of dower, and he further claimed a one-fourth share in certain movable and immovable property alleged to have been left by the deceased Sadar-ud-din. The lower Court dismissed the claim in regard to Rs. 25,000 out of the amount of the dower claimed and decreed the rest of the claim. This appeal has reference only to the dower debt.

2. On behalf of the respondents objections have been taken under Section 561 of the Code of Civil Procedure, but the only objection argued by Mr. Ghulam Mujtaba is that the Court below had no jurisdiction to entertain the claim in so far as it related to the dower debt. This objection was raised in the Court below, but was overruled by that Court. The grounds on which the objection is founded are, that the claim for dower is a claim based on a contract; that the contract in this case was not entered into within the jurisdiction of the Court of the Subordinate Judge of Bareilly; that it was not to be performed within the limits of the jurisdiction of that Court; that the defendants do not, and did not at the time of the institution of the suit, actually and voluntarily reside or carry on business or personally work for gain within the jurisdiction of that Court, and that under Section 17 of the Code of Civil Procedure the suit could not be instituted in the Court of the Subordinate Judge of Bareilly. The Subordinate Judge was of opinion that the objection was untenable, inasmuch as one of the defendants had a temporary residence in the Bareilly district, and under Section 44 of the Code of Civil Procedure the Court had granted leave to the plaintiff to unite different causes of action in the same suit.

3. The learned Counsel who has appeared here for the appellant does not support the decree of the Court below on the ground set forth in the judgment of the learned Subordinate Judge. Indeed the ground cannot be sustained. The authority of a Court to grant permission to a plaintiff to unite different causes of action in the same suit presupposes the existence of jurisdiction in the Court to entertain suits founded on all those causes of action. The learned Counsel for the appellant takes his stand on Clause (d) of Section 16 of the Code of Civil Procedure. He argues that although the plaintiff might or might not succeed in the claim advanced by him, his claim as put in the plaint was one for the sale of the movable and immovable property of Sadar-ud-din, deceased, in satisfaction of the dower debt, and was therefore a suit for a declaration of right to or interest in immovable property, within the meaning of the section mentioned above.

4. We are unable to accede to this contention. It is nowhere alleged in the plaint that the plaintiff's assignor had a charge for her dower debt on any property of her husband, and the prayer in the plaint amounted to no more than a mere claim to recover a money debt out of the assets of a deceased debtor. The plaint contains no prayer for the establishment and. enforcement of a charge. All that it asks for is that a decree 'may be passed against all movable and immovable property, left by Sadar-ud-din Khan, deceased, and that the said amount may be caused to be paid to the plaintiff by attachment and sale of the said property.' As we understand the plaint, the prayer is simply for the money claimed and for the recovery of that money by execution in the ordinary course by attachment and sale of the property of the deceased, and not to enforce the claim personally against the defendants. In no sense can such a case be regarded as a suit for a declaration of a right to or interest in immovable property within the meaning of Clause (d) of Section 16 of the Code of Civil Procedure. In our judgment the Subordinate Judge of Bareilly had no jurisdiction to entertain the claim for the dower debt and on that ground the claim for dower ought to have bean dismissed.

5. We allow the objection under Section 561 of the Code of Civil Procedure and set aside so much of the decree of the Court below as decrees to the plaintiff, Rs. 5,000 on account of the dower debt. The result is that the appeal, which relates only to the dower debt, must fail and it is hereby dismissed with costs. The objections under Section 561 are allowed to the extent indicated above and quoad ultra they are dismissed. The respondents will pay and receive costs proportionate to their failure and success.


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