SYED SHAMSHUL HASAN Vs. SYED HASAN

JUDGEMENT

(1.) The facts of the suit out of which these two appeals arise are these: The plaintiffs are the sons of Saiyid Muhammad Hussain, deceased. Their mother Khedijatul Kubra, the wife of Muhammad Hussain, died on the 29 of November 1906. They sue the estate of their deceased father for their share of their mother's dower. Their suit gas been dismissed by the learned District Judge in appeal on the ground that Khadijatul Kubra had relinquished all claim to dower in favour of her deceased husband and that the suit was time barred. The plaintiffs appeal here.

(2.) I need not go into the second point, as, in my opinion, they fail on the first, on the findings of fact of the lower Appellate Court. The lower Appellate Court believed the evidence of a woman called Musammal Thanmian who was married to Muhammad Hussain's cousin. According to this witness she was present at the time that Khadijatul Kubra relinquished her claim to dower in favour of her husband. The circumstances were these: Khadijatul Kubra was pregnant and expecting to be delivered. Her time drawing near, a midwife was called in. The midwife advised obtaining the attendance of a lady Doctor. A lady Doctor came accordingly. Khadijatul Kubra relinquished her claim to dower in favour of her husband. A daughter was born to her. She died directly afterwards. I have stated these facts baldly for the reason that the witness gave the facts in this manner. I have been through the vernacular statement of her evidence carefully. From it, it is impossible to say, whether Khadijatul Kubra relinquished her claim to dower before or after the lady Doctor arrived. It is impossible to say how long the lady Doctor was in attendance. She may have been in attendance for 10 days; she may have been in attendance for 2 days, or even a shorter time, the witness does not say. It is impossible to determine from this evidence the period between the commencement of the labour pains and the death of the woman, and there is nothing in this evidence to show that Khadijatul Kubra relinquished her claim to dower, after the pains of labour had begun.

(3.) Now, the sole point taken in this appeal is that the doctrine of marz-ul-maut applies to this case. It is not open to the appellants to suggest, in view of the finding of fact, that Khadijatul Kubra did not relinquish her claim to dower in favour of her husband. The finding of fact is clear that she did. So they have fallen back on the pleas that the disposition was only valid in respect of a portion of the; property, or that it was altogether invalid because she was suffering from a mortal sickness which ended fatally. It is to be noted that the plea of renunciation of dower was put in the forefront of the defendant's reply. This will be seen from the second paragraph of the written statement. A perusal of the judgment of the Trial Court shows no reference to the doctrine of marz-ul-maul having been invoked in favour of the plaintiffs. The point taken before the Trial Court was that the witnesses who deposed that such a relinquishment had been made were unreliable. That plea found favour with the Trial Court who decided that they were unreliable. The defendants appealed to the learned District Judge on, the question of fact that the witnesses were reliable and there is nothing to show from the judgment of the District Judge that the plaintiffs replied in argument that, even if they were reliable, it was a matter of no consequence, as the relinquishment was invalidated under the doctrine of marz-ul-maul. As far as I can see, the point now taken in second appeal has been taken for the first time, but in view of the fact that the plaintiffs could not be expected to state this plea in their plaint, and in view of the fact that the original decree was in their favour, I recognise that they might have had some difficulty in putting the point forward until now. I have, therefore, permitted it to be argued, but, having permitted it to be argued, I have to look at the exact law on the subject and to see how far the evidence, which has been accepted by the lower Appellate Court, supports the plaintiffs plea, recollecting that it was for the plaintiffs to bring out in evidence the points on which they rely. It is obvious that, when a claim for dower is met by the reply that the dower has been remitted, it is for the person who claims on account of dower then to prove that the remission of the dower is vitiated because it was made by a person suffering from a mortal illness. So, it was for the plaintiffs to bring out the facts to prove their plea. As I have said, there is nothing to show that the pains of labour had commenced before the woman relinquished her claim. Musammat Jhamman told the Court that Khadijatul Kubra became apprehensive when the lady Doctor was sent for and was afraid that there was a chance that she might die, but that, otherwise she was all right, and she went on further to say that Khadijatul Kubra was perfectly well until the lady Doctor arrived and from her evidence, vague as it is, it would appear that the deceased suddenly collapsed, after the labour pains began. Now it is not the Muhammadan Law that a woman who is pregnant is considered to be suffering from a mortal disease and, on the face of it, it would be an absurdity to suppose such a doctrine. The Muhammadan Law, as I understand it, takes the common sense view that the danger does not begin until the pains begin. The pains of labour, as is well-known, are the pains produced by the contraction of the uterus in expelling the child. They come on a comparatively short time before the child is born. In Ameer Ali's Muhammadan Law, Volume 1, 4 Edition, page 61, there is an extract from the Radd-ul-Muhtar which gives the law upon the subject: "The dispositions of a (pregnant) woman in labour is valid in respect of a third of her property; but they become operative as to the whole on her recovery; so in the Jauharat-in-Nayyireh. And if a (pregnant) woman makes a gift of her dower to her husband whilst suffering from the pains of labour, and dies during the nifas the gift is not valid; so in the Sirajia." It is thus absolutely essential to invalidate the relinquishment to establish that the relinquishment was made, after the pains had come on, and, on the evidence which was believed by the lower Appellate Court, there is nothing to show that the relinquishment was made after the pains had come on. It was for the plaintiffs to establish this point. This decision is sufficient to dispose of these two appeals which are dismissed with costs which include fees in this Court on the higher scale.