MOZELLE JOSHUA Vs. SOPHIE ARAKIE

JUDGEMENT

(1.) The plaintiff is the widow of a gentleman, A.R. Joshua, and she asks for a declaration that a sum of Rs. 10,555 constitutes the first charge on the estate of her deceased husband, and that sum is due to her in priority to the sums due to all the other, creditors. The estate is being administered under the direction of the Court and the liabilities exceed the assets. Now to make good her claim to this charge on the estate of her husband, the lady relies on a document which was executed at the time of her marriage. The document has been described as a ketubah, and it is alleged by the plaintiff that it has the effect of creating in her favour the charge which she asks to have declared on her husband s estate. She supports her claim further by a number of gentlemen of the Jewish persuasion, who have come to say what effect this document has amongst their people. I have very great doubt as to whether the evidence they give is, strictly speaking, admissible.

(2.) Now before dealing with the witnesses, it becomes necessary to examine the document itself and see how far it bears out the plaintiff s contention that it creates a charge enforceable in her favour on her husband s death on his estate. The defendant s case is that this is an ancient form, the signing of which is part of the ceremony in every Jewish marriage, and it is not intended to create any liability enforceable against the husband s estate, but only to provide a sum of money, which should be payable to the lady, in case the husband should divorce her when she herself had not been guilty of misconduct. Now the document in question is singular in its appearance and in its form, it is certainly archaic. In it the husband says he allows endowment from his money to the extent of 100 silver and he undertakes to give food and clothing and other requirements of the lady, but then he states "that she brought to her husband ornaments of gold and silver and dresses, etc., totalling to "Rs. 5,000, which he has accepted, and wrote upon himself "(sic) on the former? and the latter also, in all Rs. 5,000, and "he further agreed to add out of his money an addition on "the principle of the edict, Rs. 455 in all, together with the "endowment, additions, and gifts, Rs. 10,555, and Mr. Aaron "acknowledged that the abovementioned sums are received "and accepted, by him and under his command, and he acknowledged that the said sums are as but to him, and he "possessed the same, and like the trade of goat and iron, should "it increase and decrease, will be sustained by him, and accordingly the said Mr. Aaron told us, that the security and "responsibility of this edict, the endowment and the addition "which are stipulated for her, accepted and agreed by me and "my heirs after me, from all my properties and also moveable "and not moveable will be security and pledge to realize from "the best, etc."

(3.) Now in trying to ascertain whether this is an archaic form or whether, as the plaintiff says, this is a statement of a real transaction, I think it is important to say how far the statements made in it are in fact true. Is there any evidence that the lady brought, to her, husband ornaments of gold and silver totalling in all Rs. 5,000?. At the previous hearing the lady stated that when she was married she had no property of her own, and there she had a few ornaments of gold and silver, which she says she got from her father and none from her former husband, as his were left for her daughter. She said, "I made over those ornaments to him. They were worth about Rs. 1,500. Beyond the ornaments I had only some furniture." But when she is recalled for the purpose of further examination in the present hearing, the lady says she did take to her husband Rs. 5,000 in silver and jewellery. The result is that the lady makes two contradictory statements, one at the present hearing and the other at the previous hearing. I should have hesitated to accept it if she had stated in the earlier statement that she had brought to her husband ornaments of gold and silver totalling Rs. 5,000, without some particulars, but there was no statement with regard to it at the previous hearing. There were no particulars of the ornaments, and the lady has made two contradictory statements with regard to her property. On that evidence, it has not been established that the lady brought Rs. 5,000 or any other sum to her husband on the occasion of her marriage.