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Sughra Bibi Vs. Gaya Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All580
AppellantSughra Bibi
RespondentGaya Prasad and anr.
Excerpt:
- .....had been made by him to his wife on 21st february 1927, of all his property in lieu of her dower debt. that transfer was set aside as fraudulent, and that matter is not now before us. subsequently the appellant mt. sughra bibi applied to have her name entered in the schedule of creditors for the total amount of her deferred dower debt which was rs. 5,000. the two lower appellate courts have refused that application. the sole question before us is whether a mahommedan wife is entitled to be entered in the schedule of creditors of her insolvent husband for the amount of her deferred dower debt. deferred dower debt, as stated in para. 46 of wilson's mahomedan law, edn. 4, is payable only on the termination of the marriage by death or divorce. neither of these contingencies has yet.....
Judgment:

Bennet, J.

1. This is a second appeal from an order brought by Mt. Sughra Bibi appellant, the wife of Abdul Mughni insolvent. Abdul Mughni was adjudged an insolvent on 3rd December 1927, and a previous transfer had been made by him to his wife on 21st February 1927, of all his property in lieu of her dower debt. That transfer was set aside as fraudulent, and that matter is not now before us. Subsequently the appellant Mt. Sughra Bibi applied to have her name entered in the schedule of creditors for the total amount of her deferred dower debt which was Rs. 5,000. The two lower appellate Courts have refused that application. The sole question before us is whether a Mahommedan wife is entitled to be entered in the schedule of creditors of her insolvent husband for the amount of her deferred dower debt. Deferred dower debt, as stated in para. 46 of Wilson's Mahomedan Law, Edn. 4, is payable only on the termination of the marriage by death or divorce. Neither of these contingencies has yet taken place, and it is not possible to say whether the husband will or will not divorce his wife, or whether he will or will not predecease his wife; nor is it possible to say at what date the husband would predecease or divorce his wife if either of the two contingencies did take place. Accordingly it is not possible for the insolvency Court to estimate what would be the present value of the deferred dower debt of Rs. 5,000 which was to be paid if either of those contingencies took place. Section 33, Provincial Insolvency Act, Sub-section (1) states:

Provided that, if, in the opinion of the Court, the value of any debt is incapable of being, fairly estimated, the Court may make an order to that effect, and thereupon the debt shall not be included in the schedule.

2. We consider that the present deferred dower debt comes within that proviso. It is not possible for the insolvency Court to arrive at any fair estimate of the value of this deferred dower debt in comparison with the debts of the other creditors who are entered in the schedule. The learned counsel for the appellant refers to Section 45, Insolvency Act, but that section refers to a debt payable at a definite future time and the present debt may not be payable at all in certain contingencies. We consider that the only remedy for the appellant under the Provincial Insolvency Act, lies under Section 63, and if in future her husband predeceases her or divorces her and the insolvency proceedings have not then terminated, it would be open to the appellant to apply under that section for a share of any assets which were still remaining with the receiver. In arriving at the present decision we agree with the ruling reported in Mirza Ali v. Qadari Khanam [1919] 21 P.L.R. 1919, where the Punjab Chief Court held that a similar deferred dower debt was incapable of being fairly estimated, and, therefore, should not be entered in the schedule of creditors.

3. Reference for the appellant was made to Suba Bibi v. Balgovind Das [1886] 8 All. 178, but as specifically stated on p. 180 that ruling does not apply to insolvency cases.

4. We consider that the order of the lower appellate Court was correct, and we dismiss this appeal under Order 41, Rule 11.


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