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Bibi Maimuna Begam Vs. Sharafat Ullah Khan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in131Ind.Cas.115
AppellantBibi Maimuna Begam
RespondentSharafat Ullah Khan
Cases ReferredHamira Bibi v. Zubaida Bibi
Excerpt:
muhammadan law - dower--prompt dower--fixing of proportion--discretion of covrt--wife's right to interest on dower. - - the eldest of the four daughters musharraf jahan begam stated that she demanded one half of the dower from her husband as prompt dower, but the husband who was a well-to-do man paid her the entire amount of rs. at page 588 their lordships say 'but the dower ranks as a debt, and the wife is entitled, along with other creditors, to have it satisfied on the death of the husband out of his estate......plaintiff's case was that, the prompt portion of her dower should be treated as one-half of the total dower and this should be decreed to her with arrears of interest, she said that she had demanded payment at the end of 1924 and in the middle of january, 1925. she accordingly claimed a sum of rs.1,930 as arrears of interest.2. the defence was that no particular portion of the dower had been declared to be prompt at the time of the marriage, and that the plaintiff was not entitled to any interest.3. the lower court held that it was in the discretion of the court having regard to all the circumstances of the case to say what proportion of the entire dower should be allowed as the prompt dower. the learned judge refused to any interest and decreed the claim for rs. 11,000 and directed.....
Judgment:

1. This appeal arises out of a suit for dower instituted by the plaintiff against the defendant. It is common ground that (he plaintiff's dower was fixed at Rs. 35,000 at the date of the marriage which took place on 21st March, l920. The plaintiff's case was that, the prompt portion of her dower should be treated as one-half of the total dower and this should be decreed to her with arrears of interest, She said that she had demanded payment at the end of 1924 and in the middle of January, 1925. She accordingly claimed a sum of Rs.1,930 as arrears of interest.

2. The defence was that no particular portion of the dower had been declared to be prompt at the time of the marriage, and that the plaintiff was not entitled to any interest.

3. The lower Court held that it was in the discretion of the Court having regard to all the circumstances of the case to say what proportion of the entire dower should be allowed as the prompt dower. The learned Judge refused to any interest and decreed the claim for Rs. 11,000 and directed that it should be paid at the rate of Rs. 300 a month.

4. The plaintiff contends in appeal that her entire claim should have been decreed, and that she should have been allowed the interest claimed by her.

5. The same authorities have been cited before us on both sides as laying down the rule by which Courts are to be guided in finding out what proportion of the entire dower should be treated as the prompt dower in the absence of any definite contract on the point. These cases are Eidan v. Mazhar Husain 1 A. 483 : 2 Ind. Jur. 389 Taufik-un vissa v. Ghulam Kambar 1 A. 506, Umda Begam v. Muhammadi Begum 9 Ind. Cas. 200 : 33 A. 291 : 8 A.L.J. 27 and Muhammad Subhan Ullah v. Saghir-un-nissa Bibi 50 Ind. Cas. 740 : 41 A. 562 : 17 A.L.J. 625 : 1 U.P.L.R. (A.) 10. The first mentioned case was overruled by a later Full Bench case, but the point on which the decision was overruled was different one.

6. These authorities lay down that the Court should fix the proportion to be treated as the prompt dower having regard to the status of the family, the amount of the dower and custom, if any, prevailing in the plaintiff's family.

7. As to the evidence we have got the statement of the plaintiff's eldest sister, the husbands of two of her sisters and the statement of her brother to the effect that in the marriage of all the four sisters one-half of the total dower was declared to be prompt. The eldest of the four daughters Musharraf Jahan Begam stated that she demanded one half of the dower from her husband as prompt dower, but the husband who was a well-to-do man paid her the entire amount of Rs. 35,000.

8. The husbands of the two other sisters swore against their own interest when they stated that the prompt dower of their wives was one-half of the total amount of Rs. 35,000. The plaintiffs brother also stated that although there was no clear contract to that effect, it had been made clear that one-half of the total dower was to be the prompt dower. The learned Subordinate Judge has disbelieved all this evidence on the ground that the Qazi's register does not show that one-half was fixed as the prompt dower. This may be true, but we have no reason to say that all these respectable witnesses chose to tell untruth for the sake of their sister who was bound to recover, in, any case, a substantial proportion from the defendant as her prompt dower.

9. It is resceded that the plaintiff comes from a whpcetable family. The circumstances ich have led to this unpleasant suit are rather painful. We have got it from the defendant's own letter, printed at page 17 that unpleasantness between the husband and wife arose because the husband wanted to take a second wife and the plaintiff would not agree to that. The defendant wrote to a third party, 'Unless she (the wife) comes to have the same ideas as I have on the point (the husband marrying a second time) and willingly permits me to marry another wife that unpleasantness cannot be removed.' It is not the case that the husband and wife could not live together on pleasant terms and it was on that account that the husband was seeking a second wife. The letter further shows that the defendant wanted to sever all connection with his wife when he married for the second time. Having regard to all these circumstances of the case we think that the plaintiff is fully entitled to claim, one-half share of the whole dower as the prompt dower.

10. As regards interest it is allowable under the Interest Act, being Act XXXII of 1839. Their Lordships of the Privy Council in the case of Hamira Bibi v. Zubaida Bibi 36 Ind. Cas. 87 : 38 A. 581 : 14 A.L.J. 1055 : 21 C.W.N. 1 : 18 Bom. L.E. 999 : 31 M.L.J. 799 : 20 M.L.T. 505 : 4 L.W. 602 : (1916) 2 M.W.N. 551 : 1 P. L W. 57 : 25 C.L.J. 517: 48 I.A. 294. (P.C.) said that the widow who was in possession of her husband's property in lieu of her dower was in the position of an ordinary creditor and was entitled on equitable grounds to interest. At page 588 their Lordships say 'But the dower ranks as a debt, and the wife is entitled, along with other creditors, to have it satisfied on the death of the husband out of his estate. Her right, however, is no greater than that of any other unsecured creditor.' We have been told that in some cases the Court have refused to allow interest to the wife claiming her dower. This may be so. Each case has to be decided on its own peculair facts. But if in any cases interest is to be allowed surely this is one of those cases.

11. As regards the date from which interest is to be paid, it has been alleged on be-half of the respondent that the latter did not know for certain what share of the dower he was bound to pay as the prompt dower, and, therefore, interest should not be allowed earlier than the date of the decree. We do not agree with this contention.

12. The result is that we modify the decree of the Court below by increasing the amount of the decree given to the plaintiff to the sum of Rs. 17,500. We allow interest on this amount at 6 per cent per annum from the date of the institution of the suit till recovery. We direct that the entire amount shall be paid by the defendant by the monthly instalments of Rs. 300. The costs decreed to the plaintiff would come first and then the interest from the amount paid and the balance will go to reduce the principal amount. The appellant will have her full costs of the litigation in both the Courts and the defendant will pay his own costs in both the Courts. In case of default of payment of any two instalments the whole decretal amount will become payable at once. We understand that there has already been some default in payment, but we are prepared to waive that, but in future every instalment shall be paid on the 10th of every month commencing with the 10th of January, 1931, and any two defaults thereafter will entail a liability to pay the entire amount.


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