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 on 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 sura 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 immoveable property in consideration of the discharge of Rs. 90,000 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.
2. 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 dear 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 plaintiff's dower. The real issue in the case was, 'was all the over 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 do were 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 Muhammed Ali Bahadoor v. Mirza Khurrum Bukht Yahya Ali Khan Bahadoor 19 W.R. 315 (P.C.) : 2 Suth. P.C.J. 823 : Rafique & Jackson's P.C. No. 20, was relied upon. That case was an Oudh case and the parties were Shias. In the present case the parties are Sunnis. A oareful 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 seems 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 9 Ind. Cas. 200 : 33 A. 291 : 8 A.L.J. 27, where the authorities are reviewed. Furthermore it would seem that the view taken by Mr. Ameer All 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 her 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 was some very special reason why they should have done so, and in considering the evidence we have to bear this in mind. In our judgment no special circumstances were proved. It was hinted that the defendant had treated his first wife badly and that this might be a special circumstance, but no witness said that the relations 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. They were Kazi Imanul Haq, Sheikh Ahsan Ali and Kadir Ali Khan. Dealing with the first witness the learned Subordinate Judge says: 'This witness and his relations had had litigation with the defendant both in the Civil and Criminal Courts. I am, therefore, not prepared to accept his testimony unless strongly corroborated by other evidence or circumstances.'
3. Dealing with the second witness, the Court below says: 'Kadir Ali is a dismissed servant of the defendant and is now in the plaintiff's service. Admittedly, he was served with a notice by the defendant for settlement of accounts. He is a man of no means. He has abandoned his original home and has settled at Salempur. His house is in the plaintiff's uncle's Zemindari. He does not appear to be either impartial or quite reliable.' We entirely agree with the Court below that these two witnesses are altogether unreliable. The third witness, Sheikh Ahsan Ali, no doubt, gave some evidence in his direct examination in favour of the plaintiff. He was asked in cross-examination: 'How do you know that the dower debt was payable on demand P' His answer was: 'Muhammad Salim said to Maulana Abdul Alim that dower has been settled at Rs. 1,25,000, you have been appointed a Vakil. Go and get the Nikah recited. Maulana Abdul Alim said to Subhan Ullab, the dower is fixed at Rs. 1,25,000 and Saghirunnisa is being given to you as your wife. Do you agree P He replied I agree.' If this part of the evidence of the witness be correct it is clear that there was no express declaration that the whole of the dower should be prompt. The defendant has produced three witnesses. One of these was apparently a respectable gentleman. He pays Rs. 7,000 a year as Government revenue and he is a Darbari and his income is between Rs. 23,000 and Rs. 24,000 a year. Beading his evidence and cross-examination it seems to us that he has stated that he was present at the wedding and that if anything unusual occurred, namely any declaration that the whole dower was prompt, he would have recollected it. He was cross-examined as to his arrival at, and departure from, the wedding and the learned Judge states that he is not impartial because he could not give much detail about the persons who had joined the marriage party, that from the railway time-table, a note of which has been made, it appears that he did not join the marriage party at all. It was not quite fair to the witness not to ask him some question about the railway timetable. The time-table was not proved, and it was not shown that the time-table was for the particular year in which the wedding took place: in fact there, was no evidence given as to the exact year the inamiage did take place. 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. He 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 'warib-ul-dain' and 'wajib-ul-ada' are used but not the word muajial.' 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 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 per cent, 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, that 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, including in this Court lees on the higher scale.