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Maqbul-un-nissa Begam Vs. Abdul Karim Khan and Muhammad Raza Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All315
AppellantMaqbul-un-nissa Begam
RespondentAbdul Karim Khan and Muhammad Raza Khan and anr.
Excerpt:
act no. vii of 1889 (succession certificate act), section 4 - 'debt'-- deferred dower. - - he had the witnesses before him and was in a better position than we are to judge of the credit to be given to their testimony. 'dower is a debt, like all other liabilities of the husband, and has preference over legacies bequeathed by the testator and the rights of heirs. a partition of the estate cannot take place until the dower debt has been satisfied......it is presently payable. if it be deferred it is payable in the case of death or divorce--a debt payable in future, but none the less a debt of the husband. it is a debt which accrued due on the completion of the marriage contract, but a debt payment of which is deferred.' 'the law,' said brett, m. r., 'has always recognized as a debt two kinds of debt, a debt payable at the time, and a debt payable in the future.' webb v. stenton (1883) l.r. 11 q.b.d., 518; at p. 524, deferred dower is a debt payable in the future. we think therefore that the court cannot pass any decree in favour of the plaintiff without the production of a succession certificate. but we also think that the plaintiff should have an opportunity, if so advised, of producing such certificate. accordingly we shall.....
Judgment:

John Stanley, C.J. and William Burkitt, J.

1. This appeal arises out of a suit brought by the plaintiff, one of the two heirs of Musammat Kadri Begam, the deceased wife of the defendant, for her share of the deferred dower of Musammat Qadri Begam, which became due on her death. The Court below decreed the plaintiff's claim. Of the grounds of appeal only two were pressed before us, one being that the suit was barred by limitation and the other that without the production of a succession certificate the Court below was not justified in passing a decree.

2. As regards the question of limitation the allegation of the defendant is that Qadri Begam died on the 16th of September 1902, whereas the plaintiff says that she died on the 19th of that month. If she died on the earlier date, the suit, which was not instituted until the 18th of September 1905, is barred. We have carefully considered the evidence of the witnesses who were examined for the respective parties. This evidence is very conflicting. But upon full consideration of it we are quite unable to hold that the learned Subordinate Judge was wrong in the decision at which he arrived. He had the witnesses before him and was in a better position than we are to judge of the credit to be given to their testimony. The evidence of the plaintiff's witnesses is corroborated by an entry of the death in the register of deaths kept at the police station at Chowk at Rampur where Qadri Begam died. Sirajuddin proved this entry, and according to it Musammat Qadri Begam, in the register described as Qazmi Begam, a name by which she was also known, is stated to have died on the 19th September 1902.

3. The next question is as to the necessity for a certificate under Act VII of 1889. Section 4 of that Act prescribes that 'no Court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming to be entitled to the effects of the deceased parson or to any part thereof * * * except on the production of (i) probate or letters of administration * * *

(ii) A certificate granted under Section 36 or Section 37 of the Administrator-General's Act, 1874 * * * or

(iii) A certificate granted under this Act and having the debt specified therein, or *

(iv) A certificate granted under Act XXVII of 1800 * * * or

(v) A certificate granted under the Regulation of the Bombay Code No. VIII of 1827.

4. Sub-section 2 defines 'debt' as including any debt, except rent, revenue or profits payable in respect of land used for agricultural purposes. Debt is therefore used in a very wide sense. The plaintiff has not produced probate, or letters of administration or a certificate as required by the Act. It is contended on her behalf that, inasmuch as the dower in respect of which she sues was deferred dower, it never was payable to Kadri Begam, and therefore her husband was not her debtor within the meaning of Section 4. Reliance is placed upon two decisions of the Calcutta High Court as supporting this contention. The first is the case of Nemdhari Roy v. Mussummat Bissessari Kumari (1898) 2 C.W.N. 594 in which it was held that the Succession Certificate Act referred only to debts for the recovery of which the deceased could sue, and that for debts falling due after death an heir may sue without a certificate. O'Kinealy, J., and Rampini, J., in their judgment observed: 'In law we know two kinds of debts; debts which have accrued due and debts not accruing (sic) due, but which will be due. Now the Succession Certificate Act refers only to such debts as the deceased could sue upon. The debt in this case has fallen due since the death of the deceased.' The learned Judges do not give any reasons for so restricting the meaning of the word debt. We do not find any language in the Succession Certificate Act to bear out the statement that the Act refers only to debts for the recovery of which the deceased could have sued. The language of the Act is quite general and defines a debt within the meaning of Section 4 as including 'any debt except rent, revenue or profits * *.' Dower, whether prompt or deferred, is a debt due by the husband to the wife, but in the case of deferred dower is debitum in praesenti solvendum in futuro.

5. The next case is that of Mahamed Ishaq v. Sheikh Akram-ul-Haq (1907) 12 C.W.N. 84. In that case it was held that when a Muhamnaadan wife, who has not been divorced by her husband, dies daring her husband's lifetime, the right to sue for her deferred dower accrues for the first time to her heirs and that the cause of action is not a joint one, but that any of the heirs may sue the husband separately for her share, but that in such a suit the presence of all the heirs is necessary in order effectually and completely to adjudicate upon the claims of the several heirs. We do not find in this case that any reference was made to the Succession Certificate Act. The necessity for the production of a certificate under that Act was apparently not considered.

6. Now the wife's right to dower, whether prompt or deferred, accrues as soon as her marriage is validly contracted. She can alienate it, pledge it, or make a free gift of it, either to her husband, or to her relations or to third parties, Mr. Ameer Ali in his 'Personal Law of the Muhammadans' (2nd Edition, page 392)says: 'Dower is a debt, like all other liabilities of the husband, and has preference over legacies bequeathed by the testator and the rights of heirs. A partition of the estate cannot take place until the dower debt has been satisfied. When the wife is alive she can recover the debt herself from the estate of her deceased husband. If she be dead her representatives stand in her place and are entitled to recover the same.' Dower in fact, whether it be prompt or deferred, is a debt due from the husband to the wife. If the dower be prompt, it is presently payable. If it be deferred it is payable in the case of death or divorce--a debt payable in future, but none the less a debt of the husband. It is a debt which accrued due on the completion of the marriage contract, but a debt payment of which is deferred.' 'The law,' said Brett, M. R., 'has always recognized as a debt two kinds of debt, a debt payable at the time, and a debt payable in the future.' Webb v. Stenton (1883) L.R. 11 Q.B.D., 518; at p. 524, Deferred dower is a debt payable in the future. We think therefore that the Court Cannot pass any decree in favour of the plaintiff without the production of a succession certificate. But we also think that the plaintiff should have an opportunity, if so advised, of producing such certificate. Accordingly we shall defer passing a decree in this appeal for a period of two months so as to give an opportunity to the plaintiff of obtaining the necessary certificate. We accordingly adjourn the bearing of this appeal for two months.


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