AMANI AND OTHERS Vs. MIR MAHAR ALI

JUDGEMENT

(1.) Mir Kazim Ali died, leaving a widow, Nasirun, and three daughters, Khyratun, Amani and Hakimun. The defendant, Mir Mahar Ali, was married to Hakimun, who is now dead. The suit, out of which these three appeals arise, is brought by Amani. The case which she makes in her plaint is two-fold: First, that Nasirun being insane, her three daughters divided, amongst themselves, her (Nasirun's) share in Mir Kazim Ali's estate, and after Hakimun's death, Mir Mahar Ali forged a bill of sale in her name; a deed conveying to him all Hakimun's interest in her mother Nasirun's share of Kazim Ali's estate, as well as the share in that estate taken by Hakimun in her own right: and second, that when Mahar Ali married Hakimun, he settled upon her a dower of 40,000 sicca rupees and 40 ashrafis, the whole dower being mowajjal or "deferred," and that no portion of the dower having been paid, the plaintiff Amani is, by right of inheritance, entitled, as one of the representatives of Hakimun, to a share of it, amounting to Company's Rs. 7,253-5-4. The lower Court having decided in favour of the plaintiff, as regards the dower and as regards Nasirun's share in Kazim Ali's estate, Mahar Ali appeals to this Court, his appeal being No. 59 of 1868. The main grounds of appeal are: That Hakimun having died before her husband, the dower never became payable at all; that the suit, as regards the dower, is barred by limitation, having been instituted more than three years after the death of Hakimun: that, Nasirun being alive, her daughter (whether she be insane or not) had no right to appropriate her share in Kazim Ali's estate, and therefore the plaintiff cannot sue for it; and that Mahar Ali did not, in fact, settle on Hakimun a dower of 40,000 sicca rupees, as alleged.

(2.) In the view which I take of the case, it will be unnecessary for me to consider the last of these grounds of appeal. As to the first point, I think there is nothing in it, being clearly of opinion that deferred dower becomes payable on the dissolution of the marriage, whether by divorce or by the death of either of the parties [see Macnaghten's Mohammedan Law, page 59, also 275 and 278, Cases 23 and 29. Baillie's Mohammedan Law, page 96; 1 Hedaya, 155; Hosseinooddin Chowdree v. Tajunissa Khatoon (W.R., 1864, 199)].

(3.) As regards the second point, I think that the plaintiff's claim is barred by the law of limitation, and therefore that the defendant, Mahar Ali, is entitled to a judgment. The plaintiff's suit was instituted more than three, but less than six, years after the death of Hakimun: and the question is whether when the heirs of a woman, who dies in her husband's life-time, sue the husband for her dower, which was mowajjal, their suit must not be brought within three years of the origin of their cause of action, namely, the death of the woman. On the one hand, it is contended that the right to deferred dower arises solely from the husband's contract to pay it, and that the suit is a simple suit for the breach of a contract within the meaning of Clauses 9 and 10 of Section 1 of Act XIV of 1859.1 On the other hand, it is argued that the suit is not merely for a breach of contract, but is against the husband who holds the dower in his ' hands, as trustee for his wife who (and her heirs after her death) has a lien on his property to the extent of the unpaid dower: and it is urged that the period of limitation is either 12 years, under Clause 122 of Section 1 of Act XIV of 1859, or at any rate six years under Clause 16.