ESAHAQ CHOWDHRY Vs. ABEDUNNESSA BIBI

JUDGEMENT

(1.) THIS is an appeal from a judgment of the learned Subordinate Judge, Second Court, of Burdwan, dated the 23rd September 1912, affirming the decision of the Munsif. The suit was brought by the plaintiffs for a declaration that the kabala set up by the defendant No. 1 was collusive and invalid and not binding upon them. The question that we have got to decide lies within a narrow compass. The defendant No. 1 is the widow of a Mahomedan gentleman. THIS Mahomedan gentleman, had agreed to pay certain sum as dower to the said defendant. The dower was deferred dower; but it is the common case-and so found by the learned Subordinate Judge-that a portion of the dower was outstanding at the date of the execution of the kabala in question. The deceased gentleman executed a conveyance of this property to the defendant in satisfaction of her dower-debt. A question has been, raised before ns, whether the principles of the Mahomedan Law, with reference to the death-bed illness which apply to gifts apply also to a sale when the sale is for dower-debt. The matter is not res integra. The very matter has already been dealt with in the Allahabad High Court, see Ghulam Mustafa v. Hurmat (1910) 21 Mad. L. J. 958, where the learned Judges held that the provisions of the Mahomedan Law applicable to gifts made by persons labouring under a fatal disease do not apply to a so-called gift made in lieu of the dower-debt which is really of the nature of a sale That case is exactly on all fours with the present, and it has been followed and approved of both by this Court and the Madras High Court r see Abbas Ali v. Karim Baksh (1908) 13 C. W. N. 160. Bibi Janbi v. Hazarath Saib (1910) 21 Mad. L.J. 958. We are of opinion that the decision in the case of Ghulam Mustafa v. Hurmat (1880) I. L. R. 2 All. 854, is correct, and we think we ought to follow the same. It does not seem to us from a perusal of the books that have been handed up to us in the course of the argument, that the principles relating to a gift apply to a transaction such as the one that is now before us. In our opinion, the learned Judge of the lower Appellate Court came to a correct conclusion. The present appeal, therefore, fails and must be dismissed with costs. Richardson J.

(2.) I agree. Case XII, p. 177 of Macnaghten s Mahomedan Law, appears to be distinguishable from the present case, inasmuch as it is not stated there that the sale was in consideration of a dower-debt.