Mahbooban Bibi vs Muhammad Ammeruddin and Others

Das, J.—This is an unfortunate litigation and should never have been allowed to be brought in a Court of law. The plaintiff is the wife of the defendant, and sues for recovery of Rs. 20,000 the amount of the prompt dower and for setting aside a sale deed executed by her husband in favour of his daughters by his first wife, defendants 2 and 3. The defendant was first married to Bibi Waslan and had two daughters by him, defendants 2 and 3. Bibi Waslan died on 18th March 1915.

Thereupon defendant 1 married the plaintiff. The plaintiff''s case is that her dower was fixed at Rs. 40,000 of which half was payable on demand. She accordingly claims judgment against the defendant for Rs. 20,000. It appears that on 5th February 1924 defendant 1 executed a deed of sale in favour of defendants 2 and 3 in respect of certain properties which defendant 1 inherited from iris mother. The case of the defendant on this point is that the dower payable to Bibi Waslan was Rs. 40,000 and as most of that money had become payable to defendants 2 and 3, deed of sale in question was executed in satisfaction of the claim of defendants 2 and 3 against defendant 1. The defendant contested the suit on the ground that the plaintiff''s dower was fixed at Rs. 2,100 and that no portion of it was payable on demand. The'' learned Subordinate Judge has come to the conclusion that the plaintiff''s dower is Rs. 40,000. The finding has not been challenged before us by the learned Counsel appearing on behalf of the defendant. But then the question arises whether any portion of it was payable on demand. The learned Subordinate Judge on a review of the evidence has come to the conclusion that the plaintiff has not established her case on this point. I have considered the evidence for myself; and I am unable to say that the decision of the learned Subordinate Judge on this point is erroneous.

But then arises the important question which was not properly discussed in the judgment of the learned Subordinate Judge. Mr. Khuvshed Husnain contended before us that according to the Mahomedan law a dower being consideration for marriage is, unless payment of the, whole or part of it is expressly postponed, presumed to be prompt and payable on demand. Mr. Khurshed Husnain relies upon the decision in Masthan Sahib v. Assan Bivi Ammal [1900] 23 Mad. 371, That was, however, a decision in a Shiah case and is not of authority amongst the Muhammadans of the Suni persuasion; but it seems to be well settled that amongst the Sunis where it is not settled at the time of the marriage whether the wife''s dower is to be prompt or deferred, part will be prompt and part deferred, the proportion referable to each category being regulated by custom, or, in the absence of custom, by the status of the parties and the amount of the dower settled: see Umda Begum v. Muhammadi Begam [1911] 33 All. 291, The learned Subordinate Judge has taken the view that once the plaintiff comes to Court with a definite case of an agreement as to prompt dower, it is impossible for her to rely upon the Mahomedan law. With this contension I am unable to agree. I read the finding of the learned Subordinate Judge as a finding to the effect that it was not settled at the time of the marriage whether the plaintiff''s dower was to be prompt or deferred. Now if this be so, under the law part will be prompt and part deferred. It is impossible for us in this Court to determine what part should be regarded as prompt. We must therefore remand the case to the Court below for decision on this point. The learned Subordinate Judge in deciding this case will be guided by the principle established in Umda Begum v. Muhammadi Begum [1911] 33 All. 291.

In regard to the other question, namely whether the plaintiff is entitled to have the deed of sale of 5th February 1924 set aside, I entirely agree with the decision of the learned Subordinate Judge that the plaintiff is not so entitled. The plaintiff has a money claim as against the defendant, and it would be impossible for the Court to give the plaintiff a relief as against the properties belonging to defendant 1, especially before the plaintiff has established her claim to a definite sum of money. I must therefore allow the appeal on the question as to how much out of the sum of Rs. 40,000 is payable to the plaintiff immediately. The learned Subordinate Judge will consider the matter and give the plaintiff a decree for whatever sum he considers to be payable to the plaintiff on demand, Costs will abide the result and will be disposed of by the learned Subordinate Judge.

Adami, J.

I agree.