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Asiatulla and ors. Vs. Denes Mohammed and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal152,70Ind.Cas.169
AppellantAsiatulla and ors.
RespondentDenes Mohammed and anr.
Cases ReferredTricomdas Cooverji Bhoja v. Gopinathji Thakur
Excerpt:
limitation act (ix of 1908), schedule 1, article 116, applicability of - prompt or deferred dower--suit for recovery--limitation. - .....the parties in that case. it has been held that article 103 of the limitation act applies to a suit brought by the heirs of the deceased, wife against the husband and there can be no question with regard to that. the heirs of the deceased wife suing for dower stand in her shoes and the attempt to en-force the contract which was entered into between her and her husband is maintainable by them. in some cases an attempt has been made to make a distinction between the deferred portion of the dower and the prompt portion of it on the ground that the cause of action for the deferred portion, except in case of divorce, arises only after the death of the wife, so that demand, at any rate, can be enforced by the heirs of the wife. but it does not appear that any distinction really lies.....
Judgment:

Suhrawardy, J.

1. These two appeals have arisen out of suits for recovery of a portion of the amount of dower of the plaintiff's daughter under the following circumstances. Langina Bibi, the daughter of the plaintiff, died leaving as her heirs the plaintiff, her father and her husband, Asiatulla, defendant, the appellant before us. The dower was fixed at the marriage at Rs. 500. of which Rs. 300 was prompt and the balance Rs. 200 deferred. The two other defendants, who are the brothers of Asiatulla, the husband, stood surety for the sum of Rs. 100 out of the prompt portion of the dower. The plaintiff has, therefore, brought this suit for Rs. 200, being his eight-annas share in the dower, against the husband, Asiatulla, and for Rs. 50 in the other suit against the brothers. The defence was, that the lady died more than six years before the institution of the suit and hence the suit was barred by limitation. It was also pleaded that, on receipt of the sum of Rs. 100 the deceased lady had absolved the husband from all liability for dower. The First Court gave effect to these pleas. But on appeal the learned Subordinate, judge, after a careful consideration of the evidence, held that the lady died within six years before the institution of the suit, arid that there was no full satisfaction by payment of dower in her lifetime. On these findings he decreed both the appeals, against which decrees these appeals have been brought.

2. It is argued in appeal that the period of limitation applicable to this case is provided by Articles 103 and 104 of the limitation Act, and though the Kabinnama, or the deed of dower was a registered document, Article 116 of the limitation Act would not apply on the authority of the case in Shahazada Mahomed Faez v. Shahazadee Oomdah Begum 1 Ind. Cas. 740 : 36 C. 184 : 13 C.W.N. 134 : 9 C.L.J. 105 namely, on the ground that the suit was brought by the heirs of a Muhammadan lady for dower and is not a suit which rests on contract, but for recovery of the goods of the deceased in the hands of the defendants. The report of that case is so very scanty that we are not fully aware of the circumstances under which that case was decided or the contents of the Kabinnama or any special contract between the parties in that case. It has been held that Article 103 of the limitation Act applies to a suit brought by the heirs of the deceased, wife against the husband and there can be no question with regard to that. The heirs of the deceased wife suing for dower stand in her shoes and the attempt to en-force the contract which was entered into between her and her husband is maintainable by them. In some cases an attempt has been made to make a distinction between the deferred portion of the dower and the prompt portion of it on the ground that the cause of action for the deferred portion, except in case of divorce, arises only after the death of the wife, so that demand, at any rate, can be enforced by the heirs of the wife. But it does not appear that any distinction really lies between the two portions claimed for dower. The whole claim, whether it is recoverable during the lifetime of the wife or after her death, is based on contract or agreement by which the husband promised to pay her and, indirectly, her heirs, representatives and assigns, a certain amount of money under the marriage contract. That claim is enforceable as based upon that agreement either by the wife or, after her death, by her heirs. Some doubt might have arisen with regard to bringing this claim under Article 116 of the Limitation Act as to whether it is a case for compensation for breach of contract. But it has been set at rest by the recent decision of the Judicial Committee in Tricomdas Cooverji Bhoja v. Gopinathji Thakur 39 Ind. Cas. 156 : 25 C.L.J. 279 : 44 C. 759 : 1 P.L.J. 262 : 15 A.L.J. 217 : 32 M.L.J. 357 : 21 M.L.T. 262 : 21 C.W.N. 577 : (1917) M.W.N. 363 : 5 L.W. 654 : 19 Bom. L.R. 450 : 44 I.A. 65 (P.C.). As I have observed, this point was, not raised in either of the Courts below and hence we have not the necessary facts and the result of the examination of the evidence on those facts before us. If it is argued as a bare point of law, I must answer it by saying that, in, the present case, Articles 103 and 104 are controlled by Article 116 of he limitation Act.

3. I, therefore, hold that the suits were within time and these appeals must be dismissed with costs.

Richardson, J.

4. I agree. In my opinion where the dower is payable under a registered instrument executed by the husband in favour of the wife, the suit, whether it is brought by the wife during her lifetime, or whether it is brought by her heirs after her death is a suit for compensation for breach of contract in writing registered, within the meaning of Article 116 of the Limitation Act. The distinction between prompt and deferred dower seems to me to be immaterial in this connection. The wife may sue the husband for her prompt dower at any time, even during the continuance of the marriage. The wife may also sue the husband for her deferred dower in the event of the marriage being dissolved by divorce. In such cases the wife is clearly suing on the contract contained in the registered instruments. Where the suit for dower is brought by the heirs of the wife after her death it is still, in my opinion, a suit on the contract, the contract being one which, under the Muhammadan Law, apart possibly from exceptional cases, those heirs are entitled to enforce. The present suits were brought within six years of the date of the death of the wife and I agree that they were in time and that these appeals should be dismissed with costs. Any doubt as to the meaning of the expression 'a suit for compensation for breach of contract' is removed by the decision of the Privy Council in the case to which my learned brother has referred.


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