DAVUTHAMMAL Vs. PASARI AMMAL AND ORS

JUDGEMENT

(1.) The plaintiff s suit is on a pro-note dated the 22nd August 1917. The District Munsif decreed the suit. On appeal the Subordinate Judge held that the plaintiff was in possession of the assets of her deceased husband, Sikkandar Bowther and that she could not bring a suit for her dower, when she herself was in possession of the assets of her husband.

(2.) Mr. Jayarama Iyer, who, appears for the appellant, contends that the lower Court ought to have remanded the suit for trial to the First Court converting it into an administration action; and he relies on Muhammad Sharafat v. Wahida Sultan Begum (1915) 19 C.W.N. 502. In that case a Muhammadan woman brought a suit for dower against the heirs of her deceased husband and it appeared that she was in possession of a portion of the assets of her husband, and the Court held that it was not proper that her suit should be dismissed, but that her action should be converted into one for administration. The learned Judges followed the case in Chulam Ali v. Sagirunnissa [1901] 23 All. 432 in which a Bench of the Allahabad High Court held that where a Muhammadan woman brought a suit for her dower against the heirs of her husband, the suit should not be dismissed on the ground that she was in possession of her husband s assets, but the suit should be tried as an administration action directing the woman to bring into Court all the assets in her hands. In this case it is admitted that the plaintiff was in possession of all the assets of her deceased husband and the contention of Mr. Jayarama Iyer is that she should be allowed to continue the suit as an administration action; in other words, the Court should allow her to convert the suit into an administration action and direct the District Munsif to stay it. If the suit of the plaintiff was only for the amount due to her as dower, no doubt this contention would be right. But the plaintiff has chosen to include a sum which, she said, was due to her on a loan given to her husband. The suit Was not upon the original cause of action but upon the pro-note which she alleges was executed by her husband. That was found not to be genuine by the Subordinate Judge. He dismissed the plaintiff s suit because the pro-note sued on was not found to be genuine; and he observed that plaintiff s remedy was by an administration suit impleading the necessary parties thereto. The question is whether the plaintiff should be allowed to convert the present suit into an administration action. The ease relied upon by Mr. Jayarama Iyer does not help him. In that case a Muhammadan widow claimed only her dower. But here she claimed some amount as being due to her on a pro-note executed by her husband. She based her suit not upon the original cause of action but upon the pro-note. The defendants in their written statement specifically pleaded that the suit was not maintainable on the ground that the plaintiff was in possession of the assets and that the proper course was to file a partition action, I suppose by that they meant administration action. The plaintiff did not; choose to avail herself of this course, but insisted upon her case being enquired into, and relied upon the possibility of the note being found to be genuine. The District Munsif gave a decree in her favour. Unfortunately for her the Subordinate Judge found the note not to be genuine. I do not think, in the circumstances, it would be right to allow the plaintiff to convert this action into an administration suit. Though Mr. Jayaram Iyer is willing to give up a portion of the claim - the loan - and is willing to confine the issue to the amount of mehar, yet I do not feel that in the circumstances, I should grant his request.

(3.) In the result the appeal fails and is dismissed with costs.