KULSUMBI W/O. RASOOL Vs. RASOOL MOHAMMED

JUDGEMENT

(1.) THE Plaintiff -Respondent sued her husband, the Defendant -Appellant for recovery of her dower debt amounting to Rs. 1,550. The parties are Sunnis and living separate for some years past. The Appellant has married a second time without divorcing the Respondent. The Plaintiff pleaded that the whole of the dower debt was payable on demand and in spite of the demand, the Defendant did not pay the same. The Defendant denied the amount of dower debt, but did not plead what it was according to him. He further pleaded that the whole of the debt was deferred, payable upon divorce or death and that no part of it was payable promptly.

(2.) THE trial Court decreed the Plaintiff's claim in full holding that the agreement was as alleged by the Plaintiff and that as the dower debt was payable on demand, it was to be paid whenever a demand was made. The learned trial Judge interpreted the phrase - -'payable on demand' in the same way as a negotiable instrument. The Defendant's appeal to the lower appellate Court failed. The learned appellate Judge upheld the decree of the trial Court though for different reasons. He, relying on the authority of Mirza Bedar Bukht v. Mirza Khurr -um Bakht (1873) 19 WR 315 (PC), Masthan Saheb v. Assan Bibi ILR 23 Mad. 371 (FB) and Sheik Muhammad Rowther v. Ayeesha Beevi ILR 1938 Mad. 609 : 1938 Mad. 107, held that the whole of the amount was payable promptly, as the phrase 'payable on demand' meant that in the absence of an agreement the whole of the dower debt is to be treated as prompt as held in the said cases.

(3.) THE learned Judge of the appellate Court was probably influenced by the apparent conflict of views of the different High Courts and, therefore, he thought it safer to follow the view expressed by their Lordships of the Privy Council as followed by the Madras High Court. While doing so, the learned Judge failed to notice the facts that the case before their Lordships of the Privy Council related to Shias, nor did their Lordships lay down that the said presumption about the dower being treated as prompt in the absence of an agreement was universally applicable to Muslims of all schools. The learned Judges of the Madras High Court, while following the Privy Council dictum, specifically observed as follows: