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Esahuq Chowdhury and anr. Vs. Srimati Abedannissa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtKolkata
Decided On
Judge
Reported in28Ind.Cas.692
AppellantEsahuq Chowdhury and anr.
RespondentSrimati Abedannissa Bibi and ors.
Cases ReferredGhulam Mustafa v. Hurmat
Excerpt:
muhammadan law - gift made in lieu of dower--death-bed illness--gift, principles of, applicability of. - .....deceased gentleman executed a conveyance of this property to the defendant in satisfaction of her dower-debt, a question has been raised before us whether the principles of the muhammadan law with reference to the death-bed illness which apply to gifts apply also to a sale when the sale is for dower-debt. the matter is not res integra. the very matter has already been dealt with in the allahabad high court: see ghulam mustfa v. hurmat 2 a. 854 where the learned judges held that the provisions of the muhammadan law applicable to gifts made by persons labouring under a fatal disease, do not apply to a so-called gift made in lieu of a dower-debt which is really of the nature of a sale. that case is exactly on all fours with the present and it has been followed and approved of both by this.....
Judgment:

Fletcher, J.

1. This is an appeal from a judgment of the learned Subordinate Judge, second Court of Burdwan, dated the 23rd September 1912, affirming the decision of the Munsif. The suit was brought by the plaintiffs for a declaration that the kobala set up by the defendant No. 1 was collusive and invalid and not binding upon them. The question that we have got to decide has with in a narrow compass. The defendant No. 1 is the widow of a Muhammadan gentleman. This Muhammadan gentleman had agreed to pay a certain sum as dower to the said defendant. The dower was deferred dower; but it is the common case, and so found by the learned Subordinate Judge that a portion of the dower was outstanding at the date of the execution of the kobala in question. The deceased gentleman executed a conveyance of this property to the defendant in satisfaction of her dower-debt, A question has been raised before us whether the principles of the Muhammadan Law with reference to the death-bed illness which apply to gifts apply also to a sale when the sale is for dower-debt. The matter is not res Integra. The very matter has already been dealt with in the Allahabad High Court: See Ghulam Mustfa v. Hurmat 2 A. 854 where the learned Judges held that the provisions of the Muhammadan Law applicable to gifts made by persons labouring under a fatal disease, do not apply to a so-called gift made in lieu of a dower-debt which is really of the nature of a sale. That case is exactly on all fours with the present and it has been followed and approved of both by this Court and the Madras High Court. See Abbas Ali v. Karim Bakhsh 4 Ind. Cas. 466 : 13 C.W.N. 160 and Khamrunnisa v. Shah Hazarath Saib 12 Ind. Cas. 457 : 21 M.L.J. 958 : (1911) 2 M.W.N. 412. We are of opinion that that decision in Ghulam Mustafa v. Hurmat 2 A. 854 is correct and we think we ought to follow the same. It does not seem to us from a perusal of the books that have been handed up to us in the course of the argument that the principles relating to a gift apply to a transaction such as the one that is new before us. In our opinion the learned Judge of the lower Appellate Court came to a correct conclusion. The present appeal, therefore, fails and must be dismissed with costs.

Richardson J.

2. I agree. Case XII, page 177, of Macnaughten's Muhammadan Law, appears to be distinguishable from the present case inasmuch a sit is not stated there that the sale was in consideration of a dower-debt.


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