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Mozelle Joshua Vs. Sophie Arakie - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1911)ILR38Cal708
AppellantMozelle Joshua
RespondentSophie Arakie
Excerpt:
jewish law - custom--'ketubah'--marriage settlement--charge on husband's property--priority--intestacy--bights of wife in event of a divorce. - .....of the agreement and its terms. mr. leniardo, who was called on the previous hearing, puts the lady's rights rather ' higher than any one else. he says that the document is a document of marriage-settlement, and that the amount should be paid either by the husband in his lifetime, or after his death. then comes mr. arakie, who was the last witness called for the plaintiff, and he only expresses what is the belief of his countrymen; and according to their belief this ketubah constitutes a charge on the estate of her husband, and then he further says that if the husband is insolvent the wife is to go without it. his evidence, if it is true, would be destructive of the plaintiff's case, because she claims to be given priority over all the other creditors of the deceased. then there was.....
Judgment:

Harington, J.

1. The plaintiff is the widow of a gentleman, A.R. Joshua, and she asks for a declaration that a sum of Rs. 10,555 constitutes the first charge on the estate of her deceased husband, and that sum is due to her in priority to the sums due to all the other, creditors. The estate is being administered under the direction of the Court and the liabilities exceed the assets. Now to make good her claim to this charge on the estate of her husband, the lady relies on a document which was executed at the time of her marriage. The document has been described as a ketubah, and it is alleged by the plaintiff that it has the effect of creating in her favour the charge which she asks to have declared on her husband's estate. She supports her claim further by a number of gentlemen of the Jewish persuasion, who have come to say what effect this document has amongst their people. I have very great doubt as to whether the evidence they give is, strictly speaking, admissible.

2. Now before dealing with the witnesses, it becomes necessary to examine the document itself and see how far it bears out the plaintiff's contention that it creates a charge enforceable in her favour on her husband's death on his estate. The defendant's case is that this is an ancient form, the signing of which is part of the ceremony in every Jewish marriage, and it is not intended to create any liability enforceable against the husband's estate, but only to provide a sum of money, which should be payable to the lady, in case the husband should divorce her when she herself had not been guilty of misconduct. Now the document in question is singular in its appearance and in its form, it is certainly archaic. In it the husband says he allows endowment from his money to the extent of 100 silver and he undertakes to give food and clothing and other requirements of the lady, but then he states 'that she brought to her husband ornaments of gold and silver and dresses, etc., totalling to 'Rs. 5,000, which he has accepted, and wrote upon himself '(sic) on the former? and the latter also, in all Rs. 5,000, and 'he further agreed to add out of his money an addition on 'the principle of the edict, Rs. 455 in all, together with the 'endowment, additions, and gifts, Rs. 10,555, and Mr. Aaron 'acknowledged that the abovementioned sums are received 'and accepted, by him and under his command, and he acknowledged that the said sums are as but to him, and he 'possessed the same, and like the trade of goat and iron, should 'it increase and decrease, will be sustained by him, and accordingly the said Mr. Aaron told us, that the security and 'responsibility of this edict, the endowment and the addition 'which are stipulated for her, accepted and agreed by me and 'my heirs after me, from all my properties and also moveable 'and not moveable will be security and pledge to realize from 'the best, etc.'

3. Now in trying to ascertain whether this is an archaic form or whether, as the plaintiff says, this is a statement of a real transaction, I think it is important to say how far the statements made in it are in fact true. Is there any evidence that the lady brought, to her, husband ornaments of gold and silver totalling in all Rs. 5,000?. At the previous hearing the lady stated that when she was married she had no property of her own, and there she had a few ornaments of gold and silver, which she says she got from her father and none from her former husband, as his were left for her daughter. She said, 'I made over those ornaments to him. They were worth about Rs. 1,500. Beyond the ornaments I had only some furniture.' But when she is recalled for the purpose of further examination in the present hearing, the lady says she did take to her husband Rs. 5,000 in silver and jewellery. The result is that the lady makes two contradictory statements, one at the present hearing and the other at the previous hearing. I should have hesitated to accept it if she had stated in the earlier statement that she had brought to her husband ornaments of gold and silver totalling Rs. 5,000, without some particulars, but there was no statement with regard to it at the previous hearing. There were no particulars of the ornaments, and the lady has made two contradictory statements with regard to her property. On that evidence, it has not been established that the lady brought Rs. 5,000 or any other sum to her husband on the occasion of her marriage.

4. Then with regard to Rs. 555, it has not been asserted by any one on behalf of the plaintiff that that sum was ever added to any money brought in by the lady. On the contrary the witness, Mr. Cohen, who was called on behalf of the plaintiff, says that the amount of Rs. 555 does not represent any actual sum but it is a fictitious figure inserted for the purpose of avoiding having a number of noughts in the figure which is written. The result is that on the document itself part of the figures, presented, is proved to be fictitious, and that the lady brought to her husband the amount of Rs. 5,000 has not been proved, and there is no evidence as to whether the deceased was in possession at the time of marriage of. Rs. 5,000, so that of the statements in the document some have not been proved and one has been shewn to be fictitious. Then one has to consider the evidence of the Jewish witnesses who have been called. First, there is Mr. Cohen. He says that the lady has certain claims on the husband in consideration of the agreement and its terms. Mr. Leniardo, who was called on the previous hearing, puts the lady's rights rather ' higher than any one else. He says that the document is a document of marriage-settlement, and that the amount should be paid either by the husband in his lifetime, or after his death. Then comes Mr. Arakie, who was the last witness called for the plaintiff, and he only expresses what is the belief of his countrymen; and according to their belief this ketubah constitutes a charge on the estate of her husband, and then he further says that if the husband is insolvent the wife is to go without it. His evidence, if it is true, would be destructive of the plaintiff's case, because she claims to be given priority over all the other creditors of the deceased. Then there was another gentleman, who was called just before Mr. Arakie and that is Mr. David Ezra, and he says that the lady gets her rights' under this document, and they arise in the case of divorce and do not come into operation during the husband's lifetime. He says that a sum of money is inserted in all these documents. This amount is put for the purpose of indicating the rank and position of the parties, rather than for any other reason; and he says that he has never heard of a Jewish widow asserting her rights to the ketubah money. The plaintiff has referred to a book, under the Evidence Act, which supports the plaintiff's contention as to the effect of the ketubah under the Jewish law. Now that is all the evidence which the plaintiff can rely upon to support her claim. The defendant relies on the evidence of the persons who were called at the earlier hearing and whose views are that the money can only be claimed in the case of divorce. Now the evidence of the gentlemen, who have been called by the plaintiff, when it comes to be examined, does not really establish her claim, because they only refer specially to what in their opinion is the effect of the document. It is conceded and, indeed, has been spoken to by almost every witness, that the execution of the document of this nature, has been customary amongst the Jewish people, from time immemorial, as a portion of the wedding ceremony, and no witness has ever heard of a case in which it was sought by any Jewish widow to assert that that document created a liability in her favour on the estate of her deceased husband. I confess that that part of the evidence presses me very strongly, and I am unable to believe, that if this document was really effective to give the rights to the wife which the plaintiff says it does, no case should ever have arisen in which the claim was made or established.

5. There is evidence that the ketubah gives a right enforceable by an innocent wife when she is divorced by her husband, but the evidence in this case does not, to my mind, establish that she has any rights under it against her deceased husband's estate, and my view is strengthened by the evidence that when a marriage is contracted by Jews of wealth and position, although the sums inserted may be larger, yet for the purpose of giving the widow, the rights to her husband's property, an ordinary marriage-settlement is executed, and parties never treat the provision in the ketubah as giving any real rights. On the whole case, therefore, there must be judgment for the defendant and the grounds on which I base my judgment are (i) I do not believe the ketubah is intended to create any charge, because the statement of facts in it, as to the money brought in by the lady, appears to be without any foundation; and (ii) because, while all the witnesses are agreed that it gives rights to the wife in the event of a divorce, every witness says that no case has ever occurred in which it was contended that it gave any right to the widow until the present suit; and, (iii) because there is evidence that, where it is desired to settle the property on the wife notwithstanding the existence of a ketubah, a marriage-settlement is executed.

6. I think that if the widow had been so convinced that the ketubah created a charge, she would, in the first instance, have made her claim as against her deceased husband's estate.

7. The suit must be dismissed and the plaintiff must pay costs to the defendant on scale No. 2.


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