SULTAN NACHI Vs. SALAMAR BIBI

JUDGEMENT

(1.) This second appeal arises out of a suit instituted by the plaintiff to recover a sum of Rs. 700 as and by way of dower settled as payable to her at the lime of her marriage in October 1925 by her deceased husband. The husband died in 1927 and the suit was instituted in 1930 within three years from the date of his death. Both the Courts have concurrently found that the husband did agree to pay the said sum of Rs. 700 as and by way of dower. This cannot be challenged in second appeal. The main defence of the contesting defendants who are the other heirs of her husband was that in a petition for leave to sue in forma pauperis in regard to some other claim the plaintiff stated that her husband shortly before his death, while he was very ill, had made provision for her by giving certain immovable properties and also by making a gift of Rs. 3,000 in cash; and therefore the dower debt must be deemed to have been discharged by this gift. It may be noted that the factum of gift is not admitted by the defendants but her claim was sought to be defeated on the strength of the admission made by her. Both the lower Courts proceeded to treat the case on the said footing and not upon the factum of the said gift having been made. The learned District Munsif non-suited her on the ground that having regard to the fact that the husband made a gift of such a large sum of money he could not be deemed to have died indebted and therefore a presumption must be drawn that the dower debt was discharged by the gift. The learned Subordinate Judge reversed this decision and held that the alleged gift of Rs. 3,000 must be deemed to have been made by way of a present having regard to the disproportion between the amount of the debt and the amount of the gift, though he might be inclined to draw the presumption if the amounts were equal. It is against this decision that the second appeal has been preferred. The question whether a certain payment was made by way of gift or by way of satisfaction of a debt is a question of fact as pointed out by their Lordships of the Privy Council in Iftikarunissa Begam V/s. Nawab Amjad Ali Khan (1871) 7 Beng L.R. 643 (P.C.) But Mr. Padmanabha lyengar contends that in arriving at this finding of fact the learned Subordinate Judge has misdirected himself on the question of law bearing on the case. He contends that the correct principle of law to be applied here should be that if a debtor makes a gift or gives a legacy of an amount either equal to or greater than the amount of debt, the presumption must be that the gift or legacy was by way of satisfaction of the debt. In support of this contention he relies upon the rules of English law in regard to the satisfaction of debts by legacies which is thus stated by Jarman in his book on Wills, Edn. 7, at p. 1136: If one being indebted to another in a sum of money does, by his will, give him a sum of money as great as or greater than the debt without taking any notice at all of the debt, this shall nevertheless be in satisfaction of the debt so as that he shall not have both the debt and the legacy.

(2.) Mr. Jarman points out that this rule is however not favoured and that equity leans against legacies being taken in satisfaction of debts. So far as India is concerned, this rule is not favoured and has not been adopted by the framers of the Succession Act: vide Section 164 of the old Act and Section 177 of the present Act. Beaman, J. in Hasanalli Moledina V/s. Popatlal Parbbudas (1913) 37 Bom 211 at p. 214 is inclined to think that the rule of English law is not applicable to this country. Their Lordships of the Privy Council had to consider this question in Mohammad Sadiq Ali Khan V/s. Fakr Jahan Begam with reference to the of case of a dower. In that case it was found that a Mahomedan husband agreed to pay at the time of the marriage a large sum of Rs. 50,000 by way of dower and that before his death he made gifts of amounts from time to time which far exceeded this sum of Rs. 50,000. Under such circumstances it was contended that the dower debt must be deemed to have been discharged by this gift; and Iftikarunissa Begam V/s. Nawab Amjad Ali Khan (1871) 7 Beng L.R. 643 (P.C.) was relied on before their Lordships of the Privy Council. But their Lordships doubt if the principle has any application as between husband and wife and distinguished the decision in Iftikarunissa Begam V/s. Nawab Amjad Ali Khan (1871) 7 Beng L.R. 643 (P.C.) as having given on the facts of the said case. In Iftikarunissa Begam V/s. Nawab Amjad Ali Khan (1871) 7 Beng L.R. 643 (P.C.) the thing transferred was substantial in amount and character, the equivalent of that which the debtor ought to have provided for the creditor. On the facts of that case, their Lordships said a presumption ought to be drawn that the payment must be deemed to have been made in satisfaction of the debts and not by way of additional gift. Further their Lordships point out being a question of fact as both the Courts below concurrently found that the payment was in satisfaction of the debt, that they were not inclined to disturb the said findings; and they have not enunciated any general rule or presumption.

(3.) In this case what is relied on is not the fact of the gift but an admission made by the lady of having received such a gift. If the statement made by the lady is to be relied on as an admission, her admission is that the amount was paid by way of gift and not as satisfaction of debt. It is not open to the Courts to go behind the said admission. The plaintiff swore that the payment was made not in satisfaction of the dower debt. There is no evidence contra. The defendants have not chosen to adduce any evidence to repudiate her claim. And further the fact that the amount of gift is considerably larger than and quite disproportionate to the amount of the debt, is an additional factor to be taken into consideration as was done by the learned Judge in the Court below in arriving at the conclusion whether the payment was made in satisfaction of the debt or by way of gift. It seems to me that the finding arrived at by the lower Court is correct and I do not see my way to disturb it. In the result the second appeal fails and is dismissed with costs. it has been brought to my notice that the lower Court has granted a personal decree. The lower Court is wrong in doing so. The amount should be realised only from the assets of the deceased.