LAWS(ALL)-1933-10-32

SABIR HUSAIN AND ANR Vs. FARZAND HASAN

Decided On October 31, 1933
Sabir Husain And Anr Appellant
V/S
FARZAND HASAN Respondents

JUDGEMENT

(1.) The appeal has arisen from a suit brought by the two plaintiffs-appellants, who are husband and wife for recovery of Rs. 8,333-5-4, which represents their share of inheritance in the dower of Rs. 25,000 due to their deceased daughter, Aijaz Patima, who was admittedly married to Farzand Hasan, defendant 1. They claimed a right to recover that sum from the person and property of defendant 1 and the assets left by his father, Sibte Hasan, on the allegation that defendant 1 was an infant in 1914, when he was married under the guardianship of Sibte Hasan, who had bound himself personally to pay the dower. In the alternative, the plaintiffs rest their case on the rule of Mahomedan law applicable to Shias, that a guardian contracting marriage for his minor ward is personally liable if the child husband has no means of paying the stipulated dower. Defendants 2 to 4 are the other heirs of Sibte Hasan. They have been impleaded because they and defendant 1 are in possession of the assets left by Sibte Hasan. Mt. Aijaz Patima was married to defendant 1 in August 1914. She died in 1926 leaving a daughter, defendant 5. The suit which has given rise to this appeal, was instituted on 16th March 1929 for the relief already stated. It was contested by all the defendants except No. 3. It was not admitted that Sibte Hasan had acted as the guardian for the marriage of defendant 1 with Mt. Aijaz Patima. It was alleged that the marriage was contracted by Nurul Hasan, a granduncle of defendant 1. It was denied that Sibte Hasan has incurred any personal liability for the dower, or that he was liable under any rule of law, even though he acted as guardian for the marriage of defendant 1. Mt. Aijaz Patima was said to have reduced the amount of dower to Ra. 2,500, which she made a gift of to her daughter, defendant 5, Limitation was also pleaded.

(2.) The learned Subordinate Judge found that Sibte Hasan had acted as the guardian of defendant 1 on the occasion of his marriage with Aijaz Fatjma. He also found that the dower of Rs. 25,000 had not been reduced by Mt. Aijaz Patima in her lifetime, nor had she made a gift of any portion of it to defendant 5. The plea of limitation was also overruled. As regards the liability of Sibte Hasan under the rule of Shia law, relied on by the plaintiffs, the learned Judge held that his assets were not liable. He decreed the plaintiffs claim as against defendant 1 and dismissed it as against the assets of Sibte Hasan. The plaintiffs reiterate their claim in this Court as against the assets of Sibte Hasan in the hands of the defendants. The finding of the learned Subordinate Judge, in so far as he held that, Sibte Hasan acted as the guardian for defendant 1, has been assailed before us but in our opinion it is correct. Our attention has been drawn to an entry in the register in which the marriage was noted. It records the name of certain persons who were present on that occasion. The name of Sibte Hasan is not among them. It is argued that if Sibte Hasan had been present, his name would have found a prominent place in the register. This circumstance is relied on in corroboration of the evidence led on behalf of the defendants to establish their plea that the marriage had been contracted by Nurul Hasan and not by Sibte Hasan, who was not even present. We are satisfied that the reasons given by the learned Subordinate Judge for arriving at his finding on this part of this case are not affected by the omission of the name of Sibte Hasan from the register. As is pointed out by the learned Subordinate Judge, Nurul Hasan could not be a guardiari under the Mahomedan law for the marriage of defendant 1 so long as his father was alive. In fact, for a valid marriage of defendant 1 in 1914 no one else could have acted as his guardian Sibte Hasan s name was probably not noted in the register, because he acted as guardian and was not a mere witness or spectator whose name could find a place in the register as one of those who witnessed the marriage. We hold that Sibte Hasan contracted the marriage of his infant son with the deceased Aijaz Fatima.

(3.) The finding of the learned Subordinate Judge that Sibte Hasan had not expressly assumed liability for the dower was not impugned before us, and the plaintiffs claim was rested: solely on his liability arising from the rule of Mahomedan law, to which reference has already been made. Shuraya-ul-Islam, which is an authority on questions of Shia law, gives the following rule on the subject under consideration: