MT KHATOON BEGAM Vs. SAGHIR HUSAIN KHAN

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiff-appellant claimed a sum of Rs. 10,000 from her husband, Saghir Husain Khan, the defendant-respondent, on account of her dower. The defence was that the dower fixed was Rs. 32-8-0, that the plaintiff had been divorced by the defendant in the year 1935, that her suit, instituted in the year 1939, was barred by limitation and that the liability to pay dower had been discharged because the defendant had made an application under Section 4, Encumbered Estates Act, and the plaintiff had not put in any claim under the provisions of Section 9 of the Act.

(2.) The findings of fact were that the dower fixed was Rs. 10,000 and that there was no divorce in 1935. These findings are not disputed in appeal. It was, on the other hand, admitted by the plaintiff that she had made no claim during the proceedings following on her husband's application under the Encumbered Estates Act. The learned Judge of the lower Court dismissed the suit on the ground that the liability to pay dower was discharged under the provisions of Section 13 of that Act. The plaintiff claimed that the sum of Rs. 10,000 was payable on demand, that is to say, she alleged that the whole amount was prompt dower. The defendant did not plead on this part of the allegation. He merely alleged that the amount of dower was Rs. 32-8-0 and it is obvious on the allegation that there had been a divorce in 1935, that it was a question of no importance whether the dower was prompt or deferred. The learned Judge has found as a fact that the dower was prompt and that the suit was within limitation because the first demand for payment was made in the year 1938. No evidence has been put before us to suggest that these findings of fact are wrong and therefore I would accept them. It has not been argued that any demand was made before the year 1938.

(3.) On the facts found we are left to decide certain questions of law which give rise to some difficulty. The appellant's contention is that her claim to dower could not be discharged under the provisions of the Encumbered Estates Act because it was impossible for her to obtain a decree from the Special Judge in proceedings under that Act. The first question which arises is whether a Muslim woman can institute a suit to recover her prompt dower without making a demand from her husband which is unequivocally refused by him. If the matter were res integra, it might perhaps be argued that a claim to prompt dower is dependent entirely upon the wishes of a wife and that the moment she wishes to recover the money she may institute a suit for that purpose against her husband, but it seems to me that we are bound by authority in this matter.