SYED SAMASUL HASAN Vs. SYED HASAN

JUDGEMENT

(1.) A Muhammadan lady, by name Khudija-al-kubra, died on the 29 of November 1906, in child birth. The dower-debt owing by her husband was said to be Rs. 5,000 and a female member of the family who was present stated that the lady had an apprehension of death. There was apparently some difficulty in reference to the delivery of the child which was then in her womb, and she, it is said, having the fear of death on her, did renounce her dower in favour of her husband after having asked him to forgive her faults and expressing manifestly the opinion that she was about to die. She in fact died shortly after. In 1919, after a lapse of th rteen years, the plaintiffs who were minors in 1906 brought this suit for the recovery of their share of the dower in accordance with their degree of relationship. The defendants pleaded that Musammat Khudija-al-kubra gi ted her dower-debt before her death according to the practice of the brother ood. No particulars were asked as to when, where and under what circumstances such renouncement was made and the matter got into the Court of the Subordinate Judge. There he framed an issue as to the a mount of the dower-debt of the lady and whether she had remitted her dower-debt at the time of her death. It was, therefore, known to everybody then, when that issue was framed, that it was done very shortly before her death. Then was the time when the plaintiffs Should nave taken the point that, even conceding this to have happened, the lady was suffering from marz-ul-maut. The Subordinate Judge did not believe in the renouncement of the dower as a fact and he decided in favour of the plaintiffs. The matter then went up to the District Judge where, it may be said, the marz-ul-maut point need never have been brought to the attention of the lower Court as a matter of argument, because he decided that such renouncement had not been made. Nevertheless, it was absolutely necessary that the plaintiffs should have debated this matter in the Court of first instance as a conclusive answer in law to the alleged renouncement. Nothing was said about it in the Court of the Subordinate Judge. The matter came up before the lower Appellate Court which set aside the decision of the Subordinate Judge on the ground that it was unable to un erstand why the Court should have rejected the testimony of the. lady who was present at the time when the renouncement was said to have taken place. There would have been the time for this question of marz-ul-maut to have been referred to in the lower Appellate Court as an answer to that opinion of the Judge. That is to say, if the marz-ul-maut issue had been on the record, Counsel for the plaintiffs could have said that, even if the learned Judge accepted the evidence of the solitary witness who was present, nevertheless that evidence in law did not help the defence. When the matter came up here, Mr. Justice Stuart allowed there to be a discussion on this matter. We think it ought to be understood that when a point is not taken in the lower Court that is conclusive bar to an appeal in this Court. As soon as it is established that the point ought to have been taken in the Court of first instance the appeal should be dismissed. We dismiss the appeal.