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Saghir-un-nissa Bibi Vs. Muhammad Subhan-ullah - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in(1919)ILR61All562
AppellantSaghir-un-nissa Bibi
RespondentMuhammad Subhan-ullah
Excerpt:
muhammadan law - sunnis--dower--no determination at marriage whether dower is to be prompt or deferred--presumption. - - .....to decide what was the amount of the plaintiffs dower. the real issue in the case was "was all the dower prompt." involved in this issue is the issue as to whether at the time of the marriage any express settlement or agreement was come to as to whether the dower should be prompt or deferred, whether in fact, there was any agreement one way or the other. we may state here our opinion that if there was no express agreement that the dower should be prompt then according to muhammadan law amongst the sunnis only a reasonable portion of the dower should be deemed to be "prompt" and what is a reasonable sum for prompt dower depends upon the circumstances of each case. during argument it was contended on behalf of the respondent that in the absence of any express agreement, it should be.....
Judgment:
1. This appeal arises out of a suit in which the plaintiff sued her husband to recover the sum of Rs. 35,000 being the balance of dower alleged to be due by the defendant to the plaintiff. It appears that the parties were married a considerable time ago and the plaintiff has borne four sons to her husband. She alleges in her plaint that about 7 or 8 years ago her husband contracted an intimacy with another woman and from that time he took very little interest in her. She contends that her dower was the sum of Rs. 1,25,000, but she admits that a considerable amount of this sum has already been satisfied by transferring certain property. She says that the whole of her dower was prompt, and therefore she is entitled to recover the balance. The defendant contended that her dower was only Rs. 14,000; that there was no settlement as to how much of the dower should be prompt, and that in no event should the plaintiff be allowed to recover any further sum having regard to the fact that he had already transferred to her certain property in lieu of dower. It appears that on the 10th of December, 1913, the defendant executed a sale deed in favour of his wife, the plaintiff, transferring certain immovable property in consideration of the discharge of Rs. 90,010 dower-debt, part of Rs. 1,25,000. The validity of this transfer was subsequently challenged by a creditor of the defendant who alleged that the deed had been executed for the purpose of defrauding creditors. To this suit both the plaintiff and the defendant were parties. The suit ended in the validity of the deed of transfer being upheld, the court holding that the dower was Rs. 1,25,000. In the present suit the learned Subordinate Judge held that the decision in this previous suit operated as res judicata and he refused to allow the defendant to give evidence or to contend that the dower was anything less than Rs. 1,25,000. We think that this decision was wrong in law and rather unfortunate. In the previous litigation the plaintiff in this suit was plaintiff, and she sued a certain Bank, which was the creditor of her husband, making her husband a pro forma defendant, she asking for a declaration that the property which had been transferred to her was her property and was not liable to be sold in execution of a decree against her husband The amount of the plaintiff's dower was only incidentally in controversy in that suit, and it is clear that there was no issue between the plaintiff and the present defendant in that suit as to the actual amount of the plaintiff's dower. The ruling of the Subordinate Judge was unfortunate because it had the result of keeping out some evidence of what was said and done at the time of the plaintiff's marriage with the defendant. It also afforded to some extent an excuse to the defendant for not entering the witness-box. In the present case, for reasons which will presently appear, we do not think that it is necessary for us to decide what was the amount of the plaintiffs dower. The real issue in the case was "was all the dower prompt." Involved in this issue is the issue as to whether at the time of the marriage any express settlement or agreement was come to as to whether the dower should be prompt or deferred, whether in fact, there was any agreement one way or the other. We may state here our opinion that if there was no express agreement that the dower should be prompt then according to Muhammadan law amongst the Sunnis only a reasonable portion of the dower should be deemed to be "prompt" and what is a reasonable sum for prompt dower depends upon the circumstances of each case. During argument it was contended on behalf of the respondent that in the absence of any express agreement, it should be presumed that the whole of the dower was prompt, and the case of Mirza Bedar Bukht Mohammed Ali Bahadoor v. Mirza Khurrum Bukht Yahya Ali Khan Bahadoor (1873) 19 W.R., C.R., 315 was relied upon. That case was an Oudh case and the parties were Shias. In the present case the parties are Sunnis. A careful perusal of the case will show that the head-note is hardly borne out by the judgment of their Lordships of the Privy Council, and it scorns to us that their Lordships never decided that even amongst Shias, in the absence of express agreement, the whole dower is presumed to be prompt. A contrary view has always been held in this Court--see the case of Umda Begam v. Muhammadi Begam (1910) I.L.R., 33 All., 291, where the authorities are reviewed. Furthermore, it would seem that the view taken by Mr. Ameer Ali in his work on Muhammadan law is in consonance with the decisions of this Court. We have, therefore, to see whether there was any express agreement at the time of the plaintiff's marriage with the defendant that the whole of the dower should be prompt. The dower, assuming it to be (as alleged by the plaintiff) Rs. 1.25,000, was very considerable, and it was admitted by both the learned gentlemen who appeared for the parties that it would have been very unusual if the parties had declared the whole dower to be prompt, unless there were some very special reasons why they should have done so, and in considering the evidence we have to hear this in mind. In our judgment no special circumstances were proved. It was admitted that the defendant had treated his first wife badly and that this might be a special circumstance, but no witness said that the relatives of the plaintiff stipulated that the dower should be prompt to safeguard the plaintiff. The plaintiff produced three witnesses to prove that it was declared at the time of the marriage that the whole dower was prompt. It seems to us that so far as oral evidence goes, the evidence of the defendant was more reliable than the evidence given by the plaintiff, and we agree with the court below that the onus of showing that all the dower was prompt lay on the plaintiff. The court below, however, considers that the sale deed of the 10th of December, 1913, corroborates the plaintiff's story. It seems to think that the words used in the recital in that deed amount almost to an admission that all the dower was prompt. No doubt the words "wajib-ul-dain" and "wajib-ul-ada" are used, but not the word "muaajjal." The latter word is the technical word for "prompt" dower. The words used, it seems to us, are quite consistent with a portion of the dower being payable, which would be the case if no express agreement had been arrived at the time of the marriage. On behalf of the appellant it is contended that the language in the sale deed of the 10th of December, 1913, is entirely explained by its being a document which was executed for the purpose of putting the property of the defendant out of the reach of his creditors (if it was not actually a fraud upon them). On the other hand, it is said that at the time the defendant was possessed of other means and that the court ought not to deal with the case on the supposition that there was any intention either to defraud creditors or even to protect the property of the defendant. We think that, even if the defendant was merely satisfying his wife by making a substantial payment to her of a part of her dower, the language used in the deed is not inconsistent with there not having been any declaration one way or the other as to the dower being prompt. After carefully considering the evidence, we have come to the conclusion that there was no express agreement at the time of the marriage that the whole of the dower should be prompt. This being so, we have to consider whether the defendant has not discharged so much of the dower which in the circumstances of the present case may reasonably be regarded as prompt. We have already stated that the dower was very considerable. Property worth Rs. 90,000 has been transferred, which is, roughly speaking, 72% of Rs. 1,25,000 (assuming this sum to have been the dower). We think that under the circumstances of the present case, and, even assuming that the defendant has taken a third wife, the portion of the dower already discharged is all that ought to be considered prompt and therefore the present suit ought not to have been instituted. We allow the appeal, set aside the decree of the court below and dismiss the plaintiff's suit with costs in all courts

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