SYED SABIR HUSSAIN Vs. S FARZAND HASAN

JUDGEMENT

(1.) This appeal is brought by the plaintiffs from a decree of the High Court at Allahabad dated 31 October 1983, affirming a decree of the Subordinate Judge at Moradabad dated 22nd January 1930. The appellants are the father and mother of one Mt. Ejaz Fatma, who died on 19 March 1926, aged about 21 years. On 17 August 1914 she had been married at the age of nine to the infant son of one Sibti Hasan. The husband's name was Farzand Hasan (defendant 1). At the time of the marriage, he was only nine or ten years old. The amount of dower agreed upon at the time of the marriage was Rs. 25,000 : it is evidenced by the entry in the register of Ali Husain, the qazi who solemnized the marriage, and is not in dispute. Husband and wife lived together from 1921 till the wife's death in 1926. The appellants by their suit, which was brought on 16 March 1929, after the death of Sibti Hasan, claimed as heirs of Ejaz Fatma, their daughter, entitled between them to a one-third share of her estate. They impleaded her husband, Farzand Hasan, his mother, brother and sisters, and claimed from them as the heirs of Sibti Hasan, deceased, a one-third share (Rs. 8,333-5-4) of the dower due to Ejaz Fatma, alleging that this alliance was made at the desire of Saiyed Sibti Hasan and he had himself taken the personal liability of payment of the dower debt.

(2.) At the trial the appellants sought to prove that Sibti Hasan had at the time of the marriage made an express promise to become liable for the dower as a surety for his son. This was disbelieved by the trial Judge, whose finding on the point was not impugned in the High Court. The respondents, on the other hand, denied that Sibti Hasan had been present at the marriage or had acted therein as the guardian of his son. This denial has been disbelieved by both Courts in India, and before the Board it is not in dispute that the marriage was entered into by authority of Sibti Hasan as father of the infant bridegroom and of the appellant Sabir Hasan as father of the infant bride. These two men indeed were relatives and on the same day the appellants' son was married to Sibti Hasan's daughter (defendant 3). Now the parties are Shias; and before the Courts in India and before the Board the appellants have contended that, according to the Mahomedan law applicable to Shias, Sibti Hasan became liable to pay the dower of Ejaz Fatma by reason of the fact that his infant son Farzand Hasan had no means of his own at the time Sibti Hasan married him to Ejaz Fatma. For this proposition of law the appellants vouch the authority of the Suraya (Shuraya-ool- Islam). In Book I, which treats of nikah or marriage, the fifth chapter treats of muhr or dower. Of this chapter the third section, headed "The Laws of Dower", deals with 15 "cases" giving a statement of the law applicable to each. This is followed by five further cases described as " branches from the preceding " and of these the fourth is as follows : Fourth :

(3.) If one should contract his infant son in marriage, and the child has independent means of his own, he is liable for the dower. If the child is poor, the obligation rests entirely on the father, and in the event of his death must be discharged out of the whole of his property, whether the child should arrive at maturity and become wealthy, or die before it. If therefore the father should have paid the dower, and the youth should come to maturity and then divorce his wife before coition, the son and not the father has a right to reclaim half the dower, the payment by the father being considered in the light of the law, as a gift to the son.