1. This is a suit for dower by a Mohamedan lady of rank against her husband's brother. The husband died on the 13th April 1913, leaving her and his brother his legal heir. The claim is based upon a Kabinnama said to have been executed on the 27th July 1907, when the lady was a minor. The dower settled was Rs. 15,000, one-half payable on demand and the other half on dissolution of marriage. She attained majority in January 1913, that is, about three months before the death of her husband. That there was a Kabinnama was disputed by the defendants and it was also said that she bad verbally relinquished her claim for dower after the death of her husband and thus released the estate from liability. The learned Subordinate Judge has held the first point in the plaintiff's favour, and as regards the second point the discusses the evidence and says that although there are minor discrepancies, he is 'inclined to believe that the plaintiff released the dower' when her husband's dead body was being removed.
2. It was argued on behalf of the plaintiff that even if it be so held, effect ought not to be given to any words of release she might have used, as she was then overwhelmed with grief and could not have made a relinquishment of her free-will that there was evidence that her mother and sister urged her at that time to make such a remission and that such release, if any, ought not to be considered as valid and binding upon her. The learned Subordinate Judge 'did not think there was any force in this argument, as the plaintiff knew that it was her sacred duty to make her late husband free from liabilities to her, and she released her dower voluntarily although her sister and mother might have reminded her of her duty at that time, when it was the duty of every near relation to bid good-bye to the departs 3 soul and wish him a safe voyage to his place of rest.' This issue having been held in the defendant's favour and her suit dismissed, she has preferred this appeal.
3. It is an admitted fact in the case that 'the plaintiff and her late husband had very great love for each other, and that she became overwhelmed with grief for his untimely death' (paragraph 7, written statement). What happened at the time the dead body was taken away is described by the defendant's witness Saliman Bibi in this way: 'There was great noise there on account of crying. At the time of seeing the dead man's face, Nurunnessa's mother and sister held her and took her there. They took her there near the dead body to show her his face. The face was shown while they stood in front of the door of the hall. They were within the hall when they saw the face. Even when she was looking at the face, Nurunnessa (the plaintiff) was crying loudly.... Nurunnessa said this when she forgave 'I have relinquished my claim to Rs. 10,000 as dower, May God also pardon you'.... The dead body was taken away as soon as the face was shown.' Another witness Mahabatjan said The ladies were in the hall; they saw the face; the plaintiff was amongst the ladies;.... She began to weep very much; her mother and her sister requested her not to weep but to do her duty then and forgive the Moharana. She then gave up her Moharana saving: 'I have forgiven my Moharana, may God also forgive you.' She said this while she was weeping,.... The plaintiff was weeping very much at the time of seeing the face...when she came to see the dead body her mother or sister took her there by holding her arm; her arm was being held when she gave up the claim.' Khaja Enaet Hossein said: 'The plaintiff then saw the face and wept aloud; her elder sister then told her to give up the Moharana; the plaintiff while weeping said 'I have forgiven my Moharana, God will also.' The dead body was then taken out ' Khaja Fakirulla said: 'The plaintiff was brought to the front of the door frame by her mother, her elder sister, Musa Miah's mother and my sister Lutifunnessa Bibi. The plaintiff was weeping then; she was overwhelmed with grief. The plaintiff's mother said something to her and her sister too said something.'
4. It has been argued before us that even if the discrepancies in the statements of the witnesses as regards the amount and the manner in which the Moharana was said to have been given up be overlooked and the finding of the Subordinate Judge that the plaintiff relinquished her dower at that time be accepted, yet no effect should be given to it, as an act of that character must be shown to have been voluntarily and deliberately made; that her free will and deliberate judgment had been exercised. If it was a case of a document executed at that time relinquishing her dower, the Court would have required proof that she had independent advice, and was capable of exercising her judgment, that she was free from influences. It was argued that a lady in that state of mind, at such a critical time and in such surroundings was likely to be greatly influenced by any expressions of opinion that her act was a meritorious and a religious one and she might thus have felt impelled to make a relinquish-meat, but advantage ought; not to be taken of that fact and effect ought not to be given to it, when she is not prepared to give up her claim after consideration, that there is nothing in the Muhammadan Law that such relinquishment cannot be made except on that occasion.
5. Baillie in his Digest says (2nd Edition, part I, page 553, 1875) that 'the gift of dower to a dead husband is valid on a favourable construction of the law.' A footnote adds 'to release him from responsibility at the date of judgment.' Ameer Ali in his Muhammadan Law, 4th Edition, Volume 1, Chapter If, Section 111, page 174, says, 'A woman may release her dower to her deceased husband, that is, a widow is entitled to exonerate or discharge the estate of her deceased husband from the liability of her dower-debt.' In the 4th Edition of Wilson's Digest of Muhammadan Law we find a new section added as 47A, which runs thus: 'The release of dower by a wife to husband is expressly sanctioned by the Koran (K. IV 4, which is a mistake for 1V 3) and is, there fore, not void for want of consideration.' The passage in the Koran runs thus: ''Give the women their dower freely; but if they voluntarily remit unto you any part of it enjoy it with satisfaction.'' Sale's Koran IV* 3; see Wherry's Edition (Trubner's Oriental Series), Volume II, page 69. The same Surah is translated by Rod well thus: 'Give women their dowry freely : but if of themselves they give up aught thereof to you, then enjoy it as convenient and profitable.' (The Koran: Everyman's Library Edition, page 411). The above passage refers to remission of the dower to the husband in his lifetime. 'Voluntarily ' in its ordinary sense means freely, without compulsion, not under any obligation: Att. Gen. v. Ellis (1895) 2 Q.B. 466 : 64 L.J.Q.B. 813 : 15 R. 684 : 73 L.T. 190 & 350 : 44 W.R. 13 : 59 J.P. 774. It was held in Jyani Begam v. Umrao Begam 32 B. 612 : 10 Bom. L.R. 764 that according to Muhammadan Law a dower is a debt and its remission by a widow without acceptance by the heirs of the husband is effective. It was argued in that case that according to Muhammadan Law the remission of a debt extinguishes it and it is not necessary that there should be any acceptance of the remission on the part of the debtor. It was contended on the other hand that the formlua pronounced ' I have given up my dower for the sake of God and his Apostle' showed that the remission was in the form of a Sadaka (religious gift), that a gift according to the Muhammadan Law requires tender, acceptance and seisin (Hedaya, 2nd Edition, Book XXX, Chapter I, page 482): that the intention of the donor ought to be declared in the presence of the donee and in the case of Sadaka, seisin is necessary (Hedaya, page 489). The learned Judge accepted the view that according to Muhammadan Law a debt) remitted is a debt extinguished and that no acceptance is required. In Abi Dhunimsa Bibi Ammal v. Muhammad Fathiudini 44 Ind. Cas. 293 : 41 M. 1026 : 23 M.L.T. 78 : (1918) M.W.N. 246 : 35 M.L.J. 468 it was held that a relinquishment of her right to dower by a Mahomedan woman, who is a minor under the Indian Majority Act, is invalid under the Indian Contract Act (IX of 1872). That case decided as to whether the relinquishment of a dower was ' an act in the matter of the dower' and protected by Section 2 of the Indian Majority Act. Both the above oases are not of much help in this case According to the Muhammadan Law it is well established that the character of the obligation to pay the dower is a debt. The moment the dower is settled it is enforceable as a debt. The dower becomes the property of the wife by the mere contract and she may, therefore, deal with or dispose of it before taking possession of the same. [Shama Charan Sircar's Muhammadan Law, Tagore Lacture (1874) page 361], The dower is the right of the woman solely; and hence it in that she is empowered to give it up or relinquish it in the continuance of the contract. (Hamilton's Hedaya, Book II, Chapter III, page 45.) As the debt is enforceable under the Contract Act, it can also be released under Section 63 of the Contract Act, but the question is whether the remission which is said to have been made in this case can be considered as binding upon the lady and irrevocable. We think that in all such cases free assent must be established. It might be shown that the lady voluntarily and deliberately gave up her right. It is quite true that members of the family to which she belonged knew the precept in the Koran, if it can be so called; and she also knew instances in her own family where dower had been given up and that it was looked upon as a meritorious act. But she was overwhelmed with grief at the time, the body was just about to be removed for burial and that very near relatives spoke to her about its being a meritorious act. She was surrounded by female relatives and it is very natural that under those circumstances a very young woman was led to say something which was understood as a relinquishment of her dower debt, without having considered the matter from her personal point of view and under a sudden emotional impulse. Circumstances of this character have impelled Hindu women to perform the Sati. If a document had been given by this lady at that time--relinquishing her rights in favour of the heir, it would have been looked upon with disfavour and we think that an alleged verbal relinquishment under such circumstances ought not to be favoured. There is nothing in the Muhammadan Law that such relinquishment, to be valid, must take place immediately after the husband's death. She can relinquish it at any time. It can be remitted in favour of the heir after the husband's death. No consideration seems to be needed for such relinquishment, but what we have to see is whether she had the opportunity of considering the matter when it is said She gave up her claim. Site was in the presence of death and in great mental distress. She had no time for freedom of thought and action. It is also conceded by the learned Vakil for the respondent that free assent must be established. That is a question irrespective of Muhammadan Law. We think she was prompted and was not a free agent at the time. She was not in a position to exercise free and deliberate judgment and influence was exercised which she was not in a position to overcome. It is immaterial that she was influenced by her own mother and sister. Under those circumstances we are unable to uphold the alleged relinquishment as valid.
6. The learned Subordinate Judge has drawn an adverse inference against her from the fact that the Kabinnamah is not forthcoming. He thinks that inasmuch as the lady relinquished her claim it was not looked upon as a valuable document and that no care was taken to preserve it. The fact is that it was with the mother who is dead, and it cannot be found. The loss of the document need not be taken against her. She has married again and it may be that she has been influenced by her present husband to make the claim, but it is a legal debt which was due to her and which is not time-barred. She is in possession of some of the husband's immoveable properties. That debt, according to the Muhammadan Law, is a lien upon the property in her possession. It was argued that the lien could not be discharged by a verbal relinquishment; that under the Registration Act it was necessary to have a registered document. There is some force in this contention, but even if we do not accept it as correct, having regard to the circumstances of the case we cannot hold that the relinquishment is operative.
7. After the case had been fully argued before us, an application was made yesterday on behalf of the respondent that he should be allowed to argue certain other points which we were told his Vakil considered worthy of discussion, namely, that there was no sufficient evidence about the due execution of the Kabinnamah and also about its loss. No points other than those referred to in our judgment were even indicated when the appeal was argued. The arguments took the best portion of two days and we think it is too late to re-hear the matter. We cannot do to in the absence of the other side. One of us is going to leave India for six months, and: this is the last day before the long vacation. We are unable to accede to the prayer.
8. We allow the appeal with costs in both Courts. There will be a decree for Rs. 15,000 in favour of the plaintiff against the estate left by her husband Khaja Mahomed Arjoo, with interest at 6 per cent. from date of suit.