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Mohammad Zahur Ahsan and ors. Vs. Mt. Maimuna and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All142
AppellantMohammad Zahur Ahsan and ors.
RespondentMt. Maimuna and ors.
Excerpt:
- - 2500. 4. the learned subordinate judge held that the claim was not barred by limitation but that the plaintiffs had failed to prove that the dower of mt. and even where such an entry exists, it is not always safe to accept it with implicit confidence. in the present case, the evidence adduced by the plaintiffs is of a very weak and uncertain character. agreeing therefore with the court below, we hold that the plaintiffs have failed to establish that the amount of dower of mt......plaintiffs' appeal arising out of a suit for recovery of rs. 8,250 as the plaintiffs' share in a dower debt.2. one hakim sadruddin ahmad died on 20th october 1924 leaving three sons by his first wife mt, umm-i-salama, a widow mt. maimuna, who is defendant 1 and her three sons and two daughters who are defendants 5 and 6. the plaintiffs alleged that the contracted dower between hakim sadruddin ahmad and mt. umm-i-salama was rs. 11,000. mt. 'umm-i-salama died in 1907. her heirs under the mahomedan law were her husband sadruddin and her three sons who are the plaintiff's in the suit.3. the suit was contested on the ground that the claim was statute barred and that the amount of dower of mt. umm-i-salama was not rs, 11,000 but was only rs. 2500.4. the learned subordinate judge held that.....
Judgment:

1. This is plaintiffs' appeal arising out of a suit for recovery of Rs. 8,250 as the plaintiffs' share in a dower debt.

2. One Hakim Sadruddin Ahmad died on 20th October 1924 leaving three sons by his first wife Mt, Umm-i-salama, a widow Mt. Maimuna, who is defendant 1 and her three sons and two daughters who are defendants 5 and 6. The plaintiffs alleged that the contracted dower between Hakim Sadruddin Ahmad and Mt. Umm-i-salama was Rs. 11,000. Mt. 'Umm-i-salama died in 1907. Her heirs under the Mahomedan law were her husband Sadruddin and her three sons who are the plaintiff's in the suit.

3. The suit was contested on the ground that the claim was statute barred and that the amount of dower of Mt. Umm-i-Salama was not Rs, 11,000 but was only Rs. 2500.

4. The learned Subordinate Judge held that the claim was not barred by limitation but that the plaintiffs had failed to prove that the dower of Mt. Umm-i-Salama was Rs. 11,000. Since, however, the defendants admitted that her dower was Rs, 2500 he gave the plaintiffs a decree for their share out of Rs 2500

against the whole assets of Sadruddin in the hands of both the parties.

5. The plaintiffs in their appeal contend before us that the Court below ought to have held on the evidence that the amount of the dower of Mt. Umm-i-Salama was Rs. 11,000.

6. There is no instrument in writing evidencing the amount of dower which was agreed upon between Sadruddin and Mt. Umm-i-Salama at the time of their marriage. The case of the plaintiff rests mainly upon oral evidence. Reliance is placed upon the judgment of the Subordinate Judge dated 24th August 1922 (Ex. 2). It is alleged that a decree was passed in favour of Mt. Amatul Bari who was a lady 'belonging to the family of Umm-i-Salama for Rs. 11,000 as her dower debt This judgment is not entitled to any weight in view of the fact that the suit was not contested and the finding of the Court below rested upon the uncorroborated testimony of a single witness.

7. The plaintiffs examined five witnesses to prove the amount of dower debt. These witnesses did not impress the trial Court favourably. Munshi Fazal Ahmad is the brother of Mt. Umm-i-Salama. He is no doubt in a position to know the dower fixed for his sister, but he cannot be considered to be an independent witness; and as the learned Subordinate Judge remarks, he is obviously interested in helping the plaintiffs, who are his sister's sons. The learned Subordinate Judge noticed some discrepancies between the statements of this witness and the other witnesses for the plaintiffs. Having regard to the lapse of time, we are not prepared to attach very great importance to these discrepancies. We, however, consider that the learned Subordinate Judge was justified in not attaching importance to the statements of either Fazal Ahmad or the other witnesses who are not men of such character and social status as would inspire confidence. Ghasi, Zahur Hasan and Sheikh Ahmad are strangers to the family. They could not be expected to have been invited to join a marriage which was arranged at a very short notice and in very great hurry. The learned advocate for the appellants tried to make out from the oriel evidence produced on their behalf that Rs. 11,000 was the customary dower of the girls belonging to the family of Muhammad Umar. He argued that having regard to the position in life of Sadruddin Ahmad and to the fact that the lady belonged to a respectable family it would not be unlikely for a girl of the family of Muhammad Umar, her father, to have Rs. 11,000. for her dower. Not uncommonly, the amount of dower is fixed irrespective of the status in life of the husband and without any regard to the extent of his worldly possessions. It is not unfrequently the case, that an amount of dower, entirely disproportionate to the means of the husband, is agreed upon not as the result of calculation but of impulse and excitement of the moment and as a mark of courtesy to the bride. An instrument in writing evidencing the amount of dower such as a kabinama is extremely rare in the province of Agra. An entry of the amount in the Qazi's register is also a rarity; and even where such an entry exists, it is not always safe to accept it with implicit confidence. When a controversy arises as to the amount of dower, the place of documents is, in great many cases, sought to be supplied by a mass of oral evidence. At times, it becomes extremely difficult for a Court of law to disentangle the truth from the conflicting statements of witnesses, many of whom are not generally free from the taint of partiality or prejudice. In the case of Mt. Huseena v. Mt. Hasmatoonissa Bibi 7 W.R. 495 their Lordships observe that to support a claim for dower, very satisfactory evidence was absolutely essential. In the present case, the evidence adduced by the plaintiffs is of a very weak and uncertain character. Agreeing therefore with the Court below, we hold that the plaintiffs have failed to establish that the amount of dower of Mt. Umm-i-Salama was Rs. 11,000.

8. We think that this appeal is without any force and we dismiss it with costs.

9. The respondents have filed a cross-objection and contend that the plaintiffs' suit is barred by limitation and that the plaintiffs are not protected by Section 7, Lim. Act.

10. Upon the death of Mt. Umm-i-Salama, the right to recover her dower descended to her heirs. These were the three plaintiffs and Sadruddin her husband. From the very nature of the case, Sadruddin could not be treated as one of several persons jointly entitled to institute a suit for recovery of the dower debt. The Judge of the Court below has overruled the plea of limitation and relied upon the decision of this Court in Kandhiya Lal v. Chandra [1885] 7 All. 313 in which it has been held that when upon the death of the obligee of a money bond, the right to recover the money has devolved upon his heirs in specific and defined shares, each of such heirs is not competent to sue separately for recovery of his share of the money due on the bond. The position of the sons of Mt. Umm-i-Salama qua their right to the dower debt is not that of joint tenants but is that of tenants-in-common. They were entitled to recover their share of the debt out of the estate of Sadruddin. The question is whether the plaintiffs, under these circumstances, are entitled to the benefit of Section 7, Lim. Act, which runs as follows:

Where one of several persons jointly entitled to institute a suit... is under any such disability, and a discharge can be given without the concurrence of such persons, time will run against them all: but, where no such discharge can be given, time will not run as against any one of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.

11. The Court below has found and its findings in this respect have not been disputed before us that of the three plaintiffs, plaintiff 1, Mohammad Zahur Ahsan was born on 18th May 1904, that plaintiff 2 was a born imbecile and his imbecility continues right up to the present time and that plaintiff 3, Mohammad Muzaffar Uddin attained his majority many years before the present suit and that he is about 30 years old at the present time. The learned Judge of the Court below held that all the three plaintiffs had a joint right to maintain a suit for recovery of the dower debt and that it was not open to any one of the plaintiffs to give a discharge without the concurrence of the rest. There could be no question of concurrence on the part of Muzaffar Uddin, plaintiff 2 who is a lunatic. The Court below held that so long as plaintiff 1 had not attained his majority it was not possible for plaintiff 3 to give a valid discharge of the dower debt on behalf of himself and the other plaintiffs. He therefore held that as the suit had been instituted within three years of the attainment of the majority of the plaintiff 1, the claim was within time. In I.L.R. 7 All. 313 [1885] 7 All. 313, the suit was for enforcement of a money claim due on a bond which was executed in favour of one Shambhu Singh. Upon his death a four and a half anna share in the bond devolved by right of inheritance upon his two nephews, Gudri Singh and Bishnath Singh who sold the said share to the plaintiff in that case. The question for determination in the case, was as to whether Gudri Singh and Bishnath Singh were entitled to maintain an action for their share in the bond. This bond created a single and indivisible liability. This liability was not disrupted by reason of the death of the original creditor. In the present case the circumstances are toto caelo different because ex hypothesi upon the death of the original creditor the right to recover the dower debt was inherited in part by the debtor himself.


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