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Sheik Muhammad Rowther and anr. Vs. Ayeesha Beevi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1937)2MLJ779
AppellantSheik Muhammad Rowther and anr.
RespondentAyeesha Beevi
Cases ReferredMasthan Sahib v. Assan Bivi Ammal
Excerpt:
- - 10. not being satisfied with the orders of the trial and the lower appellate courts, the defendants came up to the high court. 15. had the full bench case not been based on the law laid down by the privy council, it would have been necessary to consider whether in view of the pronouncements of the learned judges of allahabad and patna high courts based as they are on the dicta of learned authors like baillie and ameer ali it would not be advisable to refer the case to another full bench. ameer ali in his well-known work at page 499 (vol......of the deed of dower could not be challenged in the second appeal. but in view of a full bench decision of this court given in masthan sahib v. assart bivi ammal : (1900)10mlj123 which followed a decision of the privy council in mirsa bedar bukht mohummed alt bahadoor v. mirsa khurrum bukht yahya ali khan bahadur (1873) 19w.r. 315 the one hand and divergent views taken particularly by the high courts of allahabad and patna in the rulings cited below on the other (eidan v. mazhar husain i.l.r. (1877) 1 all. 483 taufik-un-nissa v. ghulam kambar i.l.r.(1877) 1 all. 506 umda begam v. muhammadi begum i.l.r (1910) 33 all. 291 and mussammat btbi mahbooban v. sheikh muhammad ammeruddin i.l.r 1929) . 8 pat. 645), he considered it desirable to refer the case for an authoritative ruling.....
Judgment:
ORDER

Burn, J.

1. The facts are all set forth in the judgment of my learned brother which I have had the advantage of perusing. Since I agree with his conclusions, it is not necessary for me to say more than a few words upon the subject for decision in this appeal.

2. The point upon which our learned brother Venkataramana Rao, J., felt some doubt was whether the Full Bench in disposing of the case in Masthan Sahib v. Assan Bivi Ammali : (1900)10MLJ123 intended to lay down the law for all Muhammadans, whether Shias or Sunnis. If it did, there is no question about the binding nature of the decision so far as we are concerned, and since the decision is now 37 years old, I should be very reluctant to suggest that it requires reconsideration whatever the nature of the decisions in other provinces might be.

3. I do not think there is any room for doubt upon this matter. The order of reference to a Full Bench, which gave occasion for the decision reported in Masthan Sahib v. Assan Bivi Ammali : (1900)10MLJ123 states simply that the parties were 'Muhammadans'. It goes on to state that this Court in the case of Tadiya v. Hasanebiyari (1870) 6 M.H.C.R. 9 held that:

According to Muhammadan law dower is presumed to be prompt in the absence of express contract.

The ground of this decision was stated to be that: ' The authorities agreed that there was a presumption of Muhammadan law to this effect.

4. Later in the order of reference the learned Judges draw attention to Ameer Ali's work on Muhammadan law in Sheik Muhammad Rowther Sheik which a distinction is made between the Shia law and the Kowther , Hanafi' doctrines. Nevertheless in the opinion delivered by the Full Bench there is no reference to any difference between Hanafi doctrine and Shia doctrine. It cannot be presumed that the learned Judges overlooked the reference to Ameer Ali's work and the only conclusion I can draw from their opinion is that they deemed themselves to be laying down the law for all Muhammadans irrespective of sect.

5. There is undoubtedly a divergence of view between Macnaghten and Baillie in those parts of their treatises in which they were propounding the principles of Hanafi law. There was not, I believe at any time, any question about the Shia doctrine on this point. According to Shia law, the whole dower is prompt when the contract is silent. I agree with my learned brother that the remark attributed to Mr. K. Srinivasa Aiyangar in the report of his argument in Masthan Sahib v. Assan Bivi Ammal : (1900)10MLJ123 . ' These parties are Shias ' must be the result of incorrect reporting. If the parties had been Shias the contention put forward on their behalf could never have arisen. Macnaghten and Baillie differed. This Court in Tadiya v. Hasanebiyari (1870) 6 M.H.C.R. 9 (which was a case affecting Shafis, that is, Sunnis) followed Macnaghten in preference to Baillie and their Lordships of the Privy Council in Mirza Bedar Bukht Mohummed Ali Bahadoor v. Mirza Khurrum Bukht Yahya Ali Khan Bahadoor (1873) 19 W.R. 315 expressed the opinion that the view laid down in Macnaghten's principles was ' the admitted rule '. I am quite clear that we should do nothing now to indicate any doubt about the correctness of the decision in Masthan Sahib v. Assan Bivi Ammal : (1900)10MLJ123 . On the question of interest no sufficient reason was shown for interference with the decree of the lower Court.

6. The appeal must be dismissed with costs.

Abdur Rahman, J.

7. This appeal arises out of a suit brought by one Ayeesha Bivi for the recovery of her dower amounting to Rs. 2,000 and for subsequent interest. The suit was filed on the basis of a deed of dower which was silent on the point whether the dower was prompt or deferred. It was alleged on behalf of the plaintiff, however that as the deed was silent on the point, the dower should be presumed to be prompt and in any case there was a communal custom prevailing to that effect in the Nallampillai community. In answer to this claim, her husband defendant 2 pleaded that the deed filed on behalf of the plaintiff was a forgery and that a sum of 2,000 tangas only and not Rs. 2,000 (a tanga being 1/3rd of a rupee) was fixed as dower between the parties and was so entered in a document which had also provided that the whole of the dower was deferred in character. It was also pleaded that the aforesaid dower of 2,000 tangas, that is, Rs. 667 was, although deferred, already paid to the plaintiff. In the alternative it was pleaded that the plaintiff was not entitled to recover any mahar during the continuance of the Nikah and that there was no custom which would entitle her to claim it before dissolution of marriage.

8. Finding that the plea of payment raised on behalf of the defendants was not substantiated and that the deed of dower relied upon by the plaintiff was a genuine document, the trial Court did not give an explicit finding on the custom alleged on behalf of the plaintiff but referring to the question of law it was stated that the view taken by the Bombay High Court was probably the more correct view. He therefore found that the whole of the dower was payable on demand and decreed the claim.

9. Aggrieved by this order the defendants filed an appeal to the Subordinate Judge at Dindigul who went into questions of facts carefully but disposed of the question of law with a statement that according to the Bombay High Court, if the document was silent on the point when the dower was to be paid, it should be taken to be payable at once.

10. Not being satisfied with the orders of the trial and the lower appellate Courts, the defendants came up to the High Court. The appeal was heard in the first instance by my learned brother, Venkataramana Rao, J., who came to the conclusion that the genuineness of the deed of dower could not be challenged in the second appeal. But in view of a Full Bench decision of this Court given in Masthan Sahib v. Assart Bivi Ammal : (1900)10MLJ123 which followed a decision of the Privy Council in Mirsa Bedar Bukht Mohummed Alt Bahadoor v. Mirsa Khurrum Bukht Yahya Ali Khan Bahadur (1873) 19W.R. 315 the one hand and divergent views taken particularly by the High Courts of Allahabad and Patna in the rulings cited below on the other (Eidan v. Mazhar Husain I.L.R. (1877) 1 All. 483 Taufik-un-nissa v. Ghulam Kambar I.L.R.(1877) 1 All. 506 Umda Begam v. Muhammadi Begum I.L.R (1910) 33 All. 291 and Mussammat Btbi Mahbooban v. Sheikh Muhammad Ammeruddin I.L.R 1929) . 8 Pat. 645), he considered it desirable to refer the case for an authoritative ruling and the case has consequently been sent to a Bench of this Court for disposal. This was done particularly as some doubt existed on the question whether the Madras Full Bench case and the Privy Council case, both of which have been cited above, intended to lay down the law for all Muhammadans whether of Shia or Sunni persuasion or only for Muhammadans of the Shia sect alone. This doubt was natural as the Privy Council decision was given in the case of certain members of the ruling house of Oudh who were Shias and although there was nothing to show on the records of the Madras Full Bench case printed in Masthan Sahib v. Assan Bivi Ammal : (1900)10MLJ123 that the parties were Shias, a statement has been printed as having been made by Mr. K. Srinivasa Aiyangar, Counsel for the appellant, that the parties to that suit were Shias. This is surprising as this statement is preceded by the words:

Syed Ameer Ali in his work on ' Muhammadan Law,' Vol. II, at p. 386, draws a distinction between Shias and Hanafis.

11. If the Counsel for the appellant in that case were alive, as he must have been to the distinction pointed out by Syed Ameer Ali, which laid down that under the Shia law, where no time was specified for the payment of the dower or where its nature was described only in general terms and it was mentioned in the contract of marriage how much was prompt and how much deferred, the whole was to be considered as prompt. Mr. Srinivasa Aiyangar was contending for the appellant in that case that the dower in Muhammadan law, if not specified to be prompt, could not be presumed to be so. He is then stated to have cited in support of his contention the following words out of Baillie's Digest of Muhammadan Law:

When the parties have explained how much of the dower is to be Moouj jul or prompt, that part of it is to be promptly paid. When nothing has been said on the subject, both the woman and the dower mentioned in that contract are to be taken into consideration with the view of determining how much of such a dower should properly be prompt for such a woman and so much is to be Mooujjul or prompt, accordingly, without any reference to the proposition of a fourth or a fifth, but what, is customary must also be taken into consideration.

12. If the parties to the suit were on the other hand Shias, Baillie's Digest of Muhammadan Law, Vol. I, which deals with the law amongst Sunn is, would not have been quoted at all particularly when the Counsel had, as pointed above, admitted that in the case of Shias, the presumption would be otherwise. It might be stated here that Baillie discusses the Imamea Law in the second volume of his work.

13. The contention that Mr. Srinivasa Aiyangar could not have made such a statement in Masthan Sahib v. Assan Bivi Ammal : (1900)10MLJ123 was also supported by the Counsel for respondent by a reference to Wilson's Muhammadan Law, who has pointed out that an admission of that nature would have been fatal to the appellant's case (pages 118-119, ,5th Edition). I have gone through the records of the case printed in Masthan Sahib v. Assan Bivi Ammal : (1900)10MLJ123 and find nothing there which would show that the parties to the suit were Shias. In view of what has been said I have no hesitation in finding that the statement imputed to Mr. Srinivasa Aiyangar to the effect that the parties to that suit were Shias and printed at page 375 of the Indian Law Reports (Masthan Sahib v. Assan Bivi Ammal : (1900)10MLJ123 could not have been made by him. On the other hand a reference to the other authorities which were cited by the Division Bench in referring the case to the Full Bench for decision and those which were cited before the Full Bench leads me to conclude that the Full Bench was dealing with a case between persons who were of Sunni pursuasion and not those who followed the Imamea Law.

14. As for the decision given by their Lordships of the Privy Council in Mirsa Bedar Bukht case (1873) 19 W.R. 315 it is true that the parties to that suit must be presumed to have been Shias as the ruling family of Oudh was a Shia family. But a reference to the judgment in that case shows that their Lordships of the Judicial Committee did not, while considering this question, refer to Shia texts but to those which were applicable to Sunnis. There is nothing to show in fact that they intended to differentiate between the two schools of thought. The observations which they made in that case were wholly general in character. It would thus follow that the Full Bench case reported in Masthan Sahib v. Assan Bivi Ammal : (1900)10MLJ123 is binding on us and is really based on the observations made by their Lordships of the Privy Council in Mirza Bedar Bukht case (1873) 19 W.R. 315 in which they preferred to follow the law as laid down in Macnaghten's Principles and Precedents, Chapter 7, Article 22, to the effect that:

Where it may not have been expressed whether the payment of the dower is to be prompt or deferred, it must be held that the whole is due on demand.

15. Had the Full Bench case not been based on the law laid down by the Privy Council, it would have been necessary to consider whether in view of the pronouncements of the learned Judges of Allahabad and Patna High Courts based as they are on the dicta of learned authors like Baillie and Ameer Ali it would not be advisable to refer the case to another Full Bench. But in view of the conclusions arrived at by me, I don't feel called upon to do so. Moreover, while examining the original authorities referred to by Mr. Ameer Ali and Baillie, I came across an original text from Hammadeyah--a work of great authority and fully recognised to be so amongst the Sunni Mussalmans in India--in which the position of the law has been stated as described by Macnaghten in his Principles of Muhammadan Law. I find at page 89 of the first volum: of Hammadeyah (1825 Ed.).

(Written in Arabic language.)

* * * * * *

16. Rendered into English, it would read as follows:

The dower is not free then from one condition and other. It would either be with a condition of immediate payment (that is, Mooujjil) or with a condition of its being deferred (Movajjal) or it may be silent. But if it is with a condition of immediate payment or is silent, it would become immediately payable (Muajjal) for it is a contract with consideration and is therefore required to be equal on both the sides. As the woman (wife) has established the husband's right, it is essential that he (husband) may establish hers and this would be established on payment.

17. The learned author then proceeds to refer to expressly deferred dower with which we are not concerned here.

18. It is true that Mr. Ameer Ali has based his opinion on Fatawa Alamgiri which relies for its authority on a passage from Fatawa Kazi Khan. I have consulted both these original authorities and find that the statement of the law as given by them, has been correctly put down by Mr. Ameer Ali in his well-known work at page 499 (Vol._2) and by Baillie in his Digest at page 127 (1875 Edn.).

19. But the fact remains that Hammadeyah lays it down differently and this view of law was propounded by Macnaghten and recognised by the Privy Council in Mirza Bedar Bkhht easel and followed subsequently by this High Court in Masthan Sahib's case (1873) 19 W.R. 315 .

20. This rule of law is more commendable. It makes it more exact and workable in practice and fits in with the advancing state of society which gives more rights to helpless ladies in getting what they do not generally get on account of their dower a liability which flows from the contract of marriage and which was, although generally discharged previously, yet one from which the husbands have latterly tried to escape in spite of a contract of which they have taken full advantage themselves.

21. As in Masthan Sahib's case : (1900)10MLJ123 the defe dants in this case appear to have entertained the view themselves that the dower was payable on demand as in spite of the plea that it was deferred, they pleaded payment of the whole sum and thus, as pointed out in Masthan Sahib's case showed their consciousness that it ought to have been so paid.

22. At all events, it would be dangerous to go back upon or overrule decisions which are not manifestly erroneous. They have stood the test of time and must be deemed to have influenced a majority of Muhammadans--living in this Presidency at least--into a belief that if the character of dower is not specified, it would be taken to be prompt.

23. The question of interest was not seriously contested and there is no reason why the plaintiff should not get it at the rate allowed by the lower Court, when she has been deprived of the use of her dower for such a long time, although it has been found to have been payable to her on demand.

24. For the reasons given, I would dismiss the appeal with costs throughout.


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