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Mirza Mohammad Sharafat Bahadur and anr. Vs. Shahzadi Wahida Sultan Begum - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal655,28Ind.Cas.191
AppellantMirza Mohammad Sharafat Bahadur and anr.
RespondentShahzadi Wahida Sultan Begum
Cases ReferredAga Mahomed Jaffer v. Koolsom Bibee
Excerpt:
muhammadan law, shia school of - deferred dower widow's claim for, as against other heirs of her late husband--estate, window's possession of--decree for dower enforcement of--estate, court's possession of, if necessary--proper procedure in such cases--administration suit, nature of--childless widow, right of to share. - .....is by no means improbable that among the parties of the social position of the plaintiff and her husband, the dower would be fixed at a sum which might seem extravagant in the case of persons in an humbler station of life. there is, consequently, no reason to distrust the oral evidence that the dower was fixed at the sum mentioned. there is also no reliable evidence to show that any portion of the dower was paid by the husband during his life. the first ground, therefore, fails.3. the second ground raises the question of the reality of the agreement for payment of the dower at such a large sum as rs. 1,25,000. the argument in substance is that although this sum might have been named as the dower, neither the husband intended nor the wife expected that the dower should actually be paid.....
Judgment:

1. This is an appeal by two of the defendants in a suit by a Muhammadan lady, for realization of Rs. 1,25,000 as deferred dower from the assets left by her husband. According to the plaintiff she was married on the 27th February 1892, and her dower was at that time fixed at the sum claimed. Her husband died on the 8th February 1909 before any portion of the dower had been paid. The defendants are relations of the deceased husband of the plaintiff, his step-brothers and sisters, his nephews and nieces, who, it is said, claim a share in the estate by right of inheritance. The defendants pleaded that the dower had been fixed at Rs. 35,000 only and had been fully paid up. The parties, it may be stated, are governed by the Shia School of Muhammadan Law. The Subordinate Judge has found that the dower was fixed at Rs. 1,25,000 and that no portion thereof was paid by the husband during his life-timo. The Subordinate Judge has also held that although the plaintiff is in possession of the assets left by her husband, she is entitled to obtain a decree for the dower-debt in full. In this view, he has given the plaintiff a decree for Rs. 1,25,000 payable out of the properties left by her husband. On the present appeal, this decree has been assailed on three grounds, namely, first, that the evidence does not establish that the dower was fixed at the sum claimed; secondly, that if the alleged contract is taken to have been proved, there was no real agreement for the payment of the sum named; and thirdly, that as the plaintiff is in possession of the major portion, if not the entirety, of the moveables and immoveables left by her husband, she is not entitled to an unqualified decree for the whole sum claimed.

2. The first ground raises a question of fact, upon which we see no reason to disagree with the Subordinate Judge. The plaintiff has examined herself, her parents, the servants of her husband and one of his friends. The plaintiff is descended, on the parternal side, from the Imperial House of Delhi, and, on the maternal side, from the Royal Family of Oudh. Her husband was also similarly connected. It is by no means improbable that among the parties of the social position of the plaintiff and her husband, the dower would be fixed at a sum which might seem extravagant in the case of persons in an humbler station of life. There is, consequently, no reason to distrust the oral evidence that the dower was fixed at the sum mentioned. There is also no reliable evidence to show that any portion of the dower was paid by the husband during his life. The first ground, therefore, fails.

3. The second ground raises the question of the reality of the agreement for payment of the dower at such a large sum as Rs. 1,25,000. The argument in substance is that although this sum might have been named as the dower, neither the husband intended nor the wife expected that the dower should actually be paid at that sum, Reference Las, in this connection, been made to the decisions of the Judicial Committee in Mnlkah Do Alum v. Mirza Jehan Kuder 10 M.I.A. 252 : 2 W.R. (P.C.) 55 : 1 Suth P.C. (2) 20 I.A. 144 : 21 C. 135 and Suleman Kadr v. Mehdi Bagum 20 I.A. 144 : 21 C. 135. This contention is of no avail, because, before it could prevail, the appellants must establish that the sum named was so extravagant and beyond the moans of the bridegroom to satisfy that the agreement for its payment could not have been intended by either party thereto to be operative and must be deemed merely as security for an adequate provision for the wife. This clearly would involve an inquiry into facts which have not been investigated, because the question now raised was not even so much as suggested at any stage of the trial. Indeed, it is not even mentioned in any of the twenty-four grounds in the memorandum of appeal presented to this Court. We have, on the other hand, evidence to show that the husband of the plaintiff was in affluent circumstances and has left assets which, according to the defendants, are worth more than two lacs of rupees. The second contention must accordingly be overruled.

4. The third ground raises the question of the relief to which the plaintiff is entitled. The defendants contended in the Court below that no relief could be awarded to the plaintiff as she was in possession of a considerable portion, if not the entirety, of the estate left by her husband. The plaintiff contended, on the other hand, that she was entitled to an unconditional decree for the whole dower irrespective of the question of her possession. The argument for the defendants is based on the theory that as the dower is payable out of the entire estate inherited by all the heirs (of whom the widow is one), she unites in herself the character of debtor and creditor, and so long as she is in possession of any portion of the estate, she should not be allowed to hold the assets in the hands of the other heirs responsible for the satisfaction of her entire claim. The argument for the plaintiff is founded on the principle that the fact of her possession does nut interfere with her right to sue for dower, for which she has a lien upon each and every fragment of the estate, and that she should be given liberty to proceed against any part there, the rights as between herself and the other hairs to be left for adjustment in a separate suit framed for the purpose. In our opinion, the extreme contention on each side is open to just criticism. It is perfectly true, as pointed out in the cases of Sabjan Bewa v. Ansaruddin 9 Ind. Cas. 1031 : 38 c. 475 : 13 c.l.j. 427; Ali Bakhsh v. Allah Dad Khan 6 Ind. Cas. 376 : 32 A. 551 : 7 A.L.J. 567 and Raamzan Ali v. Asghari Begum 6 Ind. Cas. 405 : 32 A. 563 : 7 A.L.J. 614 where the earlier decisions, including those of the Judicial Committee in Ameeroonnissa v. Mooradoonnissa 6 M.I.A. 211 : 19 Eng. Rep. 79 : 1 Sar P.C.J. 533; Bibi Bachun v. Hamid Hossein 14 M.I.A. 377 : 10 B.L.R. 45 : 17 W.R. (P.C.) 113 : 2 Suth P.C.J. 531 : 20 E.R. 828 : 3 Sar P.C.J. 39 and Bazayet Hossein v. Dooli Chand 5 I.A. 211 : 4 C. 402 : 3 Sar P.C.J. 853 : 3 Ind. Jur. 121 : 2 Shome L.R. 169 are reviewed and explained, that under the Muhammedan Law, when a widow is in possession of the undistributed property of her deceased husband, and her dower or any part of it is due and unpaid, she is entitled, as against the other heirs of her husband, to retain such possession until her dower-debt is paid, provided that her possession was obtained lawfully and without force or fraud. It was pointed out, however, by Sir Barnes Peacock, C.J. in Ahmed Hossian v. Khadija 10 W.R. 368 : 3 3 B.L.R. 28 note, that the widow may be required to account for the profits received by her: but she would be entitled to have set off, against the sum received by her, the income she might have made from her dower-money if it had been paid to her immediately on the death of her husband see also Atahur Ali v. Altaf Fatima 10 W.R. 370 Woomatool Fatima v. Meer-un-nissa Khanum 9 W.R. 318 and Hamira Bibi v. Zubaida Bibi 7 Ind. Caas. 497 : 33 A. 182 : 7 A.L.J. 1025. It is also clear that the claim for dower is a debt due from the entire estate of the deceased, and ranks equally and rateably with the claims of other creditors: Mir Mahar Ali v. Amani 11 W.R. 212 : 2 B.L.R.A.C.J. 306; Imdad Hossein v. Hosseinee Bakhsh 2 N.W.P.H.C.R. 327 at p. 332; Ameer Ammal v. Shankaranarayanan 25 M. 658. Consequently, the share taken by the widow, by right of inheritance, is liable proportionately for the satisfaction of her dower-debt in the same way as the shares taken by the other heirs, and the liability of each heir is limited to the extent of assets in his or her hands. It is consequently plain that where the widow has obtained and retained possession of the entire estate, she has no cause of action for a money decree against the other heirs; a decree made against them is incapable of execution as, ex hypothesi, no portion of the estate sought to be pursued is in their hands. In a case of this description, if the widow desires to have the question of her dower settled, the proper course for her to follow is to institute an administration suit, in which the property can be placed in the hands of the Court, the amount of her claim, if disputed, investigated, and appropriate directions given for the satisfaction of her claim by sale of the assets of otherwise. In a case in which the widow is in possession of no portion of the estate, she may sue the persons in possession to enforce her claim, obtain a decree for the entire amount, and realize the sum due out of the assets in their hands. In the case, where the widow is in possession of a portion of the estate and the other heirs have possession of the remainder, she can seek to recover her dower by way of an administration suit, or by a suit against the other heirs provided she offers to surrender possession of the property in her hands. If she adopts the latter alternative, the litigation really assumes the character of an administration suit. This view is supported by the decision in Ghulam Ali v. Sagirunnissa Bibi 23 A. 432 : A.W.N. (1901) 124. We are unable to accept the contention of the plaintiff that though she is in possession of a considerable portion, if not the whole, of the estate, she is not bound to bring into Court the assets in her hands and yet is entitled to an unconditional decree for the entire dower, to be executed against the portion of the estate, if any, in the hands of the defendants. That this view, if accepted, might lead to grave injustice and multiplicity of suits may be illustrated by a concrete case. A Muhammadan leaves property worth Rs. 10,000. The widow is entitled to Rs. 5,000 for dower. On the death of her husband, she takes possession of moveables worth Rs. 6,000, while the other heirs are in possession of lands worth Rs. 4,000. If the contention of the plaintiff were to prevail, the widow would be at liberty to sue the other heirs for recovery of Rs. 5,000 on account of dower, to obtain a decree and to sell up the lands in their possession to satisfy her claim. They would, then, be driven to sue her for contribution and for the adjustment of their mutual rights and obligations. On the other hand, if she was compelled to place at the disposal of the Court the properties in her hands, the Court might give suitable directions for the sale of such portion of the estate as might be deemed necessary; the balance of the estate would then be divided amongst all the heirs, in proportion to their shares under the Muhammadan Law. In the case before us, the assets consist in part of valuable jewellery, and the parties are at variance upon the question not only of the value but also of the extent of the assets. In these circumstances, it is essential that the Court should take an account of the properties comprised in the estate before the plaintiff realises her dues. A further difficulty is created by the circumstance that the parties are Shias, and the plaintiff is not entitled to a share in the whole estate. A childless widow, under the Shia Law, takes no share in her husband's land, but she is entitled to her share in the value of the buildings erected thereon as well as in his moveable property. The value of the interest acquired by the plaintiff in the estate left by her husband cannot, therefore, be determined till an account has been taken of the assets, moveable and immoveable. Sharaya-Ul-Islam, tr. Querry, Volume II, Section 242; Baillie, Volume II, page 295; Himmut Bahadoor v. Sahebzadi Begum 14 W.R. 125; Asloo v. Umduloonnissa 20 W.R. 297; Aga Mahomed Jaffer v. Koolsom Bibee 24 I.A. 196 : 25 C. 9 : 1 C.W.N. 449. The decree made by the Subordinate Judge cannot consequently be supported.

5. The result is that this appeal is allowed, the decree of the Subordinate Judge discharged, and the case remanded to him. The decree of this Court will declare that the plaintiff is entitled to Rs. 1,25,000 on account of her dower payable out of the estate left by her husband. As she has not claimed interest thereon, no decree for interest will be made; but if the defendants insist upon an account of the profits received by her from the estate of her husband in her possession, interest will be allowed by way of damages on the dower debt at 12 per cent, per annum from the 8th February 1909 to the date of this suit. Both parties will be required by the Court below to place at its disposal the entire assets, and such directions will be given for the disposal thereof, by sale or otherwise, as may be deemed necessary for the realization of the sum decreed in favour of the plaintiff. We are informed that during the pendency of this appeal the decree of the lower Court has been executed by the plaintiff, and the properties purchased by herself. As the decree of the lower Court is discharged, the sale will stand cancelled. The case will be remitted to the Subordinate Judge in order that the final decree may be drawn up, and steps taken for its realization as directed by this judgment. If the defendants insist upon an account of the profits of the estate in the hands of the plaintiff, the decree will be for the principal sum of Rs. 1,25,000 with interest thereon at Rs. 12 per cent, per annum from the 8th February 1909 to the date of suit, reduced by the amount of profits received by the plaintiff. If the defendants do not insist upon an account, the profits will be set off against the interest and the decree will be for Rs. 1,25,000 only. Each party will pay his own costs in this Court; the costs hitherto incurred in the Court below as also the costs incurred after remand will be in the discretion of the Subordinate Judge.


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