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Sayabkhan Sandojai and anr. Vs. Beebee Khathoo - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in29Ind.Cas.587
AppellantSayabkhan Sandojai and anr.
RespondentBeebee Khathoo
Excerpt:
muhammadan law - dower--father, whether can be made liable for dower-debt of his son--majority act (ix of 1875), section 2, applicability of. - .....law at the time of his marriage a person capable of contracting for his marriage and for the dower payable to his wife. the plaintiff did not allege that he was a minor incapable of doing these things, and the district judge does not find that he was incapable according to his personal law. section 2(a) of the indian majority act provides that nothing in that act shall affect the capacity of any person to act in the matter of dower, and the 1st defendant's capacity in respect of his wife's dower is, therefore, unaffected by that act.2. no authority has been shown to us which supports the view of the district judge that the father can be made liable for the dower payable by his son, unless in cases where he has made himself surety for the payment and it is not alleged in the plaint.....
Judgment:

1. We agree with the District Judge that the evidence establishes the fact that the dower of the plaintiff was fixed at 9 vakyas of gold, and we are unable to differ from his finding that the value of this dower is the amount claimed in the plaint. But on the 2nd issue in the suit we are unable to agree that the 2nd defendant is liable. The 1st defendant was according to Muhammadan Law at the time of his marriage a person capable of contracting for his marriage and for the dower payable to his wife. The plaintiff did not allege that he was a minor incapable of doing these things, and the District Judge does not find that he was incapable according to his personal law. Section 2(a) of the Indian Majority Act provides that nothing in that Act shall affect the capacity of any person to act in the matter of dower, and the 1st defendant's capacity in respect of his wife's dower is, therefore, unaffected by that Act.

2. No authority has been shown to us which supports the view of the District Judge that the father can be made liable for the dower payable by his son, unless in cases where he has made himself surety for the payment and it is not alleged in the plaint or found by the District Judge that the 2nd defendant made himself a surety in this case.

3. The passage on which the District Judge relies applies only to the case where the son married as a minor is dead, and it may be that it applies only when he dies while a minor. Whether that is so or not, we cannot accept it as authority warranting us in holding that where the son was not a minor under Muhammadan Law at the time of his marriage his father, in the absence of a contract of guarantee, can be made liable for the dower payable by his son, simply on the ground that the son has no property.

4. We allow the appeal, and modify the decree by dismissing the suit as against the 2nd defendant. Bat we think, as he joined the 1st defendant in setting up the case that the dower was already paid by a gift of jewels at the marriage, we should not require the plaintiff to pay his costs.

5. In other respects we confirm the decree. The 1st defendant must pay plaintiff's costs in both Courts and 2nd defendant must pay his own.


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