UMDA BEGAM Vs. MUHAMMADI BEGAM

JUDGEMENT

(1.) This appeal arises in a suit brought by the plaintiff-appellant for a portion of her dower, She is the widow of Muhammad Ali Bahadur Khan, and it is admitted that the amount of her dower was Rs. 1,25,000. During the life-time of her husband she brought a suit in 1886 to recover Rs. 25,000 out of her dower, which she said was payable to her ass it had not been settled at the time of her marriage whether her dower was to be prompt or deferred. In answer to her claim her husband alleged that according to the contract entered into by the parties at the time of the marriage the whole amount of the dower was deferred. The Court overruled this contention and made a decree in the plaintiff's favour on the 26 of June, 1886, holding that the amount claimed was recoverable under the rules of Muhammadan Law governing the parties. Muhammad Ali Bahadur Khan having since died, the plaintiff brought the suit out of which this appeal has arisen to recover Rs. 30,000 out of the balance of her dower and she relinquished her claim to any sum in excess of that amount.

(2.) The suit was defended on the ground, among others, that the whole amount of the plaintiff's dower was recoverable at the time when she instituted her suit in 1886, and that as she did not claim the whole amount of her dower in that suit the present claim is barred by the provisions of Order II, Rule 2 of the Code of Civil Procedure, 1908, which corresponds with Section 43, Act XIV of 1882. This contention has found favour with the Court below which has dismissed the claim.

(3.) This appeal is preferred by the plaintiff, and it is urged that the Court below has erred in holding that the whole amount of the dower was recoverable at the time when the suit of 1886, was instituted. In our opinion this contention is well- founded and the weight of authority is in support of it. In Eidan V/s. Mazhar Husain 1 A. 483 Sir Robert Stuart, C.J., and Pearson, J., held that when at the time of marriage the payment of dower has not been stipulated to be deferred, payment of a portion of the dower must be considered prompt; and the amount of such portion is to be determined with, reference to custom where there is no custom it must be determined by the Court with reference to the status of the wife and the amount of the dower.