1. This is an appeal from a preliminary decree in a suit for partition and for accounts. The defendants are the appellants. One Garib Khan had two wives. The elder wife Alihan Bibi, who died before her husband, was the mother of the two plaintiffs. The younger wife Jahurdan Bibi survived her husband and is defendant 1 and her daughter is defendant 2. Jahurdan Bibi, after the death of her husband, which took place in November 1921, has married one Sheikh Ali Mohamed in Nika form. The plaintiffs' ease was that the property mentioned in Schedule Ka to the plaint belonged to Garib Khan and therefore they as his two daughters, are entitled each to a 4 as. 8 gds. thereof and that the properties described in Schedule Ka formerly belonged to her mother Alihan Bibi, some under a Hebanama which Garib Khan had executed in her favour, and since she predeceased him, he, on her death, obtained a share therein, and he having died, they are each entitled to a 7as. 2 gds. share in them. Schedule Ka was an item of a cash amount of Rs. 1,700. Schedule Kha as originally given in the plaint were two items of immoveable properties situate in Shibpur in the District of Howrah, 14 items of utensils, 33 items of ornaments alleged to have belonged to Alihan Bibi, 9 more items of ornaments which are said to have been given to her by her mother and a money-lending business. To Schedule Kha were subsequently added some more immoveable properties situate in the District of Chapra.
2. Amongst the defences that were taken in the written statements those that need be mentioned for the purposes of this appeal are: that Alihan Bibi had no immoveable properties of her own and all immoveable properties given in the plaint belonged to Garib Khan ; that the moveables described in Schedule Kha to the plaint, with the exception of a few of them which were articles of personal use of Garib Khan had been made a gift of by Garib Khan to Jahurdan Bibi ; that the money lending business belonged not to Alihan Bibi but to Garib Khan ; and that Garib Khan towards the end of his life had contracted to give Jahurdan Bibi a dower of Rs. 10,000 and she was possessing the properties in suit in lieu of the said dower. The Subordinate Judge overruled the defences and holding in favour of the plaintiffs has made a preliminary decree in the u3ual form. (His Lordship disposed of several grounds as regards gift and other evidence and proceeded.) Lastly, it has been endeavoured to establish that the plaintiffs are entitled to a decree because the properties are held by defendant 1 in lieu of a dower of Rs. 10,000 which Garib Khan had contracted in her favour. The reason why this dower was promised is said to be this: that Garib Khan had already given Rs. 4,000 and other articles and ornaments to his first wife. The dower originally promised by Garib Khan to Jahurdan Bibi at the time of the marriage was Rs. 125. It is said that because of the gift aforesaid in favour of Alihan Bibi, which on her death had benefited her daughters and sons-in-law that Garib Khan, presumably out of a sense of fairness, himself proposed to enhance the original dower of Rs. 125 to Rs. 10,000. The story is that he sought the advice of the Mahomedan Marriage Sub-Registrar and acting upon a Fatwa given by the latter divorced his wife, remained separated from her for three months and a half and married her afresh and executed a Kabinnama, and the marriage and the Kabinnama were entered in a book kept by the said Mahomedan Marriage Sub-Registrar.
3. Now, we have been taken through the evidence that is on the record relating to these matters. In our judgment, the story of the gift in favour of Alihan Bibi is a myth. The evidence relating to the Talak and the Iddat is discrepant and unconvincing. What has been sought to be proved in connexion with the fresh marriage does not sufficiently establish those formalties which are the essentials of a valid Mahomedan marriage. On a consideration of the evidence relating to this story we are not satisfied either that it is true even in its main features or that the entry in the book of the Mahomedan Marriage Sub-Registrar was made on the date that it purports to have been made. The Subordinate Judge has in his judgment pointed out some of the suspicious features of the transaction and we agree generally with his observations in this respect. What exactly took place it is not possible to ascertain, but it is possible that some sort of a ceremony may have been gone through or that some manipulation was made and the signature of the Mahomedan Marriage Sub-Registrar was obtained against an entry subsequently made. Apart from the unsatisfactory character of the evidence of the other witnesses, who can in no sense be regarded as independent or disinterested, a curious feature of the evidence of the said Mahomedan Marriage Sub-Registrar is that he has no independent recollection whatever of the transaction which is so singular in its character and which could not but have left a lasting impression on his mind, if in reality it was a transaction in which he had taken a part; cases of fresh marriage after divorce only with the object of enhancing the dower being if existent at all, only few and far between. It is difficult to assign any reason why this round about course was adopted ; the purpose could be accomplished in other simpler ways. There is authority for the view that under the Mahomedan law an addition may be made to the dower at any time during the continuance of the marriage, and the husband's promise to add to the dower, if accepted by the wife, becomes incorporated with the marriage contract and is binding on him, though unless the Mahomedan law applies, a marriage already contracted may not form a valid consideration for such increase. On the strength of this proposition it has been argued that if there was no divorce the original marriage stood and so the enhancement of the dower should be enforced.
4. But the appellants put forward a substantive case and when that case has failed it would not be right to allow them to proceed on a supposed case which was not their case at all at any stage of the suit. Besides, to hold in appellants' favour on that footing we shall have to find that there was a contract for such enhancement, but we are not satisfied that there was any real contract to that effect. Again, even if there was such a contract, that by itself would not entitle defendant 1 to retain possession of the properties. The Mahomedan law would entitle her to hold the properties, until her dower debt is paid, only if she has lawfully and without force or fraud obtained possession of them. Such possession must initially be obtained by the widow on the ground of: her claim for her dower-debt, and it would be lawful and in lieu of her dower where the dower contract provides for it or she has been put into such possession by her husband in her lifetime or by his heirs after his death. None of these elements, it must be conceded, has been proved in this case. There is, it is true, a presumption under the Mahomedan law that when the widow has been in possession of her husband's property during his lifetime and has continued so for some time after his death, her possession has been lawfully obtained and is in lieu of her dower. But this presumption which the Mahomedan law has designed for the benefit of the widow, as a means of protection to her, her rights having been specially safeguarded in the Koran, is not a presumption of law but a presumption of fact, depending upon the circumstances of each particular case. In the present case there is nothing to show that it was defendant 1 and not Garib Khan who was in possession during the latter's lifetime, and soon after his death, the possession was resisted. Even if the agreement to enhance the dower were proved we would not have felt bound to hold that defendant 1 was entitled to hold the properties until the dower debt was satisfied.
5. We consider it only necessary to add in conclusion that the Commissioner who will be appointed to carry out the terms of the preliminary decree will take evidence to find out what were the assets of the money-lending business that belonged to Alihan Bibi, and it is only in respect of that business that the plaintiffs would be entitled to a 7 as. 2 gds. share each. Should he find that apart from the money-lending business which Alihan Bibi owned there are assets of the other money lending business which Garib Khan used to carry on, then the shares of that business will have to be calculated on the footing of properties left by Garib Khan and not Alihan Bibi, that is to say, each of the plaintiffs will get a 4 as. 8 gds. share therein. The result is that, in our judgment, the grounds urged in support of the appeal all fail. The appeal therefore should be dismissed with costs, hearing fee being assessed at five gold mohurs.