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Ahmadi Bibi Vs. Mohammad Mabood - Court Judgment

LegalCrystal Citation
SubjectFamily;Limitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2158 of 1975
Judge
Reported inAIR1979All374
ActsLimitation Act, 1963 - Sections 29(3)
AppellantAhmadi Bibi
RespondentMohammad Mabood
Appellant AdvocateK.M.L. Hajela, Adv.
Respondent AdvocateInamul Haque, Adv.
DispositionAppeal allowed
Excerpt:
limitation - application of limitation act - section 29 (3) of limitation act, 1963 - suit for recovery of dower alleged to be barred by limitation - in present case muslim law is applicable - limitation act excludes itself when another law exists under section 29(3) - suit cannot be held barred under limitation act. - - 40 per month as maintenance allowance to each of the two minor children, but also recommended on the reference made on the defendant's revision that his written statement should be treated as the giving of divorce by the defendant to the plaintiff from the date of its filing. 5,000 and one asharfee from the defendant on account of her dower but the defendant having failed to pay the same, she claimed a decree for rs......me, but it cuts at the very root of the defendant's case and it cannot be said that the present suit for dower was barred by limitation, inasmuch as the claim for dower being one under the muslim law of marriage and divorce, the limitation act, 1963 cannot be said to be applicable to the present suit. in the indian limitation act, 1908 the exception was only in respect of the proceedings under the indian divorce act and there were the specific articles 103 and 104 which prescribed the limitation for a suit for recovery of dower. there are no corresponding articles prescribing limitation for a suit for dower in the schedule to the limitation act, 1963, and in view of the express provisions of section 29(3), it must be held that nothing in the limitation act can bar the suit.7. it was.....
Judgment:

Deoki Nandan, J.

1. This is a plaintiffs second appeal in a suit for recovery of her dower which has been dismissed by the two courts below on the finding that it was barred by limitation.

2. The undisputed facts are that the parties were married in Sept., 1951. The amount of dower was Rs. 5,000 and one Asharfee. The dispute centred round the day on which the marriage between the parties must be deemed to have been dissolved by divorce alleged to have been given by the defendant-respondent. The question of limitation is linked with that.

3. According to the plaintiff, she was turned out of the house by the defendant on 20th April, 1962. After exchange of notices, she filed a case under Section 488 of Cr, P. C. on 3lst Oct., 1963 for maintenance, for herself and two of her minor children. The plaintiff has pleaded that, in that case the defendant claimed that he divorced the plaintiff on 5th Dec., 1963, but the plaintiff had in that case alleged that there was absolutely no divorce; that the Magistrate held in that case that there was no divorce and passed an order granting maintenance to the plaintiff at the rate of Rs. 50 per month, against which both the parties went up in revision to the sessions court, which made a reference to this Court recommending the grant of Rs. 40 per month as maintenance allowance to each of the two minor children, but also recommended on the reference made on the defendant's revision that his written statement should be treated as the giving of divorce by the defendant to the plaintiff from the date of its filing. Both these references were accepted by this Court by Judgment dated 16th April, 1968 and it was held that the plaintiff had been divorced by the defendant on the date on which he filed his written statement in those proceedings. The plaintiff pleaded that she had 'to submit to the divorce as pronounced by the said judgment although she still contends that there is no divorce between the parties.' The plaintiff thereupon served two notices dated 11th June, 1968 and 17th Feb., 1969 demanding the amount of Rs. 5,000 and one Asharfee from the defendant on account of her dower but the defendant having failed to pay the same, she claimed a decree for Rs. 5,225 (Rs. 5,000 plus Rs. 225 as the value of one Asharfee). The written statement in the said proceeding under Section 488, Cr. P. C. was filed on 5th December, 1963.

4. The two courts below have, following the finding given by this Court in its judgment dated nth April, 1968 held that the plaintiff was divorced by the defendant on 5th Dec., 1963. According to the residuary Article 113 of the Limitation Act, 1963, which it was assumed now applies to suits for dower, the limitation prescribed for the present suit is three years from the date when the right to sue accrues. The plaintiff claims that there was no divorce and the whole of the dower being prompt, the cause of action for her claim accrued to her when the demand for its payment was first made by her notice dated 11th June, 1968 and was not complied with and may be deemed to have been refused by the defendant's reply dated 26th Feb. 1969 admitting the liability to pay only Rupees 500/- and one Asharfee. It was, however, pleaded by the plaintiff that the cause of action for the suit arose on 16th. April, 1968, which was the date of the final judgment of this Court in the proceedings under Section 488 Cr. P. C. whereby it was held that the plaintiff had been divorced by the defendant.

5. Learned counsel for the plaintiff-appellant urged that the judgment of this Court dated 16th April, 1968 in the proceedings under Section 488 Cr. P. C. is inadmissible and the finding recorded therein that the plaintiff had been divorced by the defendant on 5th Dec., 1963 is not only incorrect but irrelevant. It was contended that the two courts below have thus acted illegally in relying on that judgment and holding that the plaintiff was divorced by the defendant on 5th Dec., 1963.

6. It is, however, not necessary to go into the question about the date on which the plaintiff was divorced by the defendant, in view of the fact that Section 29(3) of the Limitation Act provides that 'save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or proceeding under any such law. Neither of the two courts below have adverted to this aspect of the matter nor was it raised in the arguments before me, but it cuts at the very root of the defendant's case and it cannot be said that the present suit for dower was barred by limitation, inasmuch as the claim for dower being one under the Muslim Law of marriage and divorce, the Limitation Act, 1963 cannot be said to be applicable to the present suit. In the Indian Limitation Act, 1908 the exception was only in respect of the proceedings under the Indian Divorce Act and there were the specific Articles 103 and 104 which prescribed the limitation for a suit for recovery of dower. There are no corresponding Articles prescribing limitation for a suit for dower in the Schedule to the Limitation Act, 1963, and in view of the express provisions of Section 29(3), it must be held that nothing in the Limitation Act can bar the suit.

7. It was not contended before me that the finding of the two courts below on the issue about the amount of dower was in any way erroneous.

8. The appeal succeeds and is allowed with costs. The plaintiff's suit for recovery of Rs. 5,225 is decreed with costs throughout.


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