MUSAMMAT SHABBAN BIBI Vs. BABU KHALIQ SHAH

JUDGEMENT

(1.) In this case the two defendants are the brother and nephew of the late Raja Muhammad Salamat Khan of Azamgarh, who died on April 3rd, 1912. He had made an arrangement in his lifetime intended to secure the succession of his nephew, the younger defendant, to his title and the bulk of his estates, this arrangement seems to have been given effect to, with the sanction of Government, as regards the title. The plaintiff, Musammat Shabban Bibi, claims to be the sole surviving widow of the late Raja; she brings this suit to recover her dower debt stated at Rs. 40,000 and claims at the same time subsidiary relief by way of declaration as to the property from which this dower-debt is recoverable. She reserves her claim to possession of one-fourth of the estate, as an heir of the deceased under the Muhammadan Law, for a separate litigation. The defendants replied that the plaintiff was never married to Raja Muhammad Salamat Khan, and consequently no dower was ever fixed for her, or could be due to her; she was merely a dancing girl who had scoured the favour of the late Raja and had been kept in a separate house" by him. They pleaded further that, as long ago as February 22nd, 1836, Raja Muhammad Salamat Khan had made full provision for the plaintiff by executing in her favour a deed of gift conveying to her his proprietary rights in village Salatnatgarh, of which the plaintiff was still in possession and enjoyment. At the same time, the Raja had taken the precaution of obtaining from the plaintiff a deed under which the latter formally relinquished all claims against the estate of Raja Muhammad Salamat Khan. With respect to this deed of relinquishment, the plaintiff s rejoinder was that she had never executed it, or at any rate had never set her name to it with any knowledge or understanding of its contents. It has also been contended, with reference to the terms of this document, that it has in any case no bearing on the claim for dower debt, whatever might be its effect on a claim to a share in the inheritance. The learned Subordinate Judge framed a number of issues, the majority of which he did not find it necessary to decide. On the main question in dispute be has held that "it has not been proved that the plaintiff is the married wife of the deceased Raja Muhammad Salamat Khan." With regard to the deed of relinquishment of February 22nd, 1886, he has held that it would not, on its terms, operate to bar a suit for dower supposing, of course, that the plaintiff were a lawfully married wife and that a dower had been fixed for her and remained unpaid. He finds, however, that the plaintiff did execute this document "after hearing and understanding it," but declines to determine a technical objection as to the validity of its registration. He holds that the plaintiff would not, in any event, be entitled to obtain in this suit a declaration as to the property from which her dower-debt, if proved, could be realized.

(2.) In her memorandum of appeal to this Court the plaintiff challenges all the findings of the Court below which are against her; but, of course, the main questions before us are whether the plaintiff was or was not married to Raja Muhammad Salamat Khan, and, if so, what was the amount of her dower-debt. The plaintiff attempted to prove her case on both these points by direct evidence. She was herself examined, on commission, and she caused to be examined, also on commission, two witnesses, Nawab Sbujayat Ali Khan and Sayyid Izhar-ud-din Ahmad, residents of Patna; these depose to a marriage at Patna in or about the year 1862 A.D. between the plaintiff and Raja Muhammad Salamat Khan at which a sum of Rs. 40,000 was fixed as the dower-debt of the former. The plaintiff also relies on a mass of circumstantial evidence as proving cohabitation between herself and the late Raja, ostensibly on the footing of lawful marriage; she also undertakes in this connection to prove acknowledgments on the part of the said Raja, both express and by implication, of her status as his wife. The defendants on their side could scarcely be expected to produce much in the way of direct evidence in proof of their negation of the marriage; they impugned the veracity of the plaintiff s witnesses and suggested explanations of the circumstantial evidence relied on by the latter. They also put forward certain circumstances as supporting their contention that the position of the plaintiff in the late Raja s household was rather that of a favoured mistress or concubine than of a wedded wife. On one point, however, and one of considerable importance, they joined issue with the plaintiff in the most direct fashion and produced a body of evidence directly contradiction that of the plaintiff and of her witnesses. The plaintiff s account of herself is that she is the daughter of one Sadiq Husain Khan, originally a resident of Delhi, who removed (at some period not very clearly specified) to the city of Patna. She was married at about the age of eighteen to one Abad Husain, a Saiyid by race, and lived with him for a little more than two years, when he died, leaving her with an infant son, who received the name of Nanhe Khan. Some three or four years after the death of her first husband, her parents arranged for her second marriage with Raja Muhammed Salamat Khan. This took place at Patna, but the Raja took her home with him to his ancestral Fort at Azamgarh, introduced her there as his honourable wife and she lived with him as such for very nearly fifty years up to the time of the Raja s death, She makes a particular point of the kindly treatment of her son Nanhe Khan by his step father, Raja Muhammad Salamat Khan, and of the affection evinced by the latter for Afzal Khan, son of the said Nanhe Khan. On the other hand, the case for the defendants is that the plaintiff is the daughter of a disreputable woman of the name of Chhuttan, who was originally a Brahmini, but was converted to Muhammadanism, adopted the profession of a prostitute and lived for many years in Azamgarh in the keeping of one Nanak Bakhsh (a Hindu, apparently a Khatri by caste) to whom she bore a number of children, including the plaintiff. The latter first attracted the notice of Raja Muhammad Salamat Khan when she was appearing in public as a dancing girl and was presumably also following the less reputable branch of her mother s profession. There was an illicit connection between the plaintiff and the Raja which continued for some years before the Raja took this favoured mistress to live with him in his Fort. The conflict of evidence on this point has a twofold importance. The witnesses Shujayat Ali Khan and Izharuddin Ahmad have committed themselves to the support of the plaintiff s own account of herself, her family and her antecedents; if on these matters they have deliberately elected to give evidence which is false in fact, which they probably know to be false and which they most certainly do not know to be true, the Court must necessarily find it very difficult to accept their testimony as sufficient to prove that the plaintiff s dower- debt really amounted to Rs. 40,000. In the second plea, much of the circumstantial evidence relied upon by the plaintiff takes on different colours and is susceptible of divergent interpretation according as the Court is satisfied that the plaintiff first met Raja Muhammad Salamat Khan as a young widow of a respectable family and unblemished antecedents or as a dancing girl and the illegitimate daughter of a prostitute.

(3.) Before dealing with the evidence on this point, I wish to make a few preliminary remarks as to the manner in which the case for the plaintiff appellant was argued in this Court. I do not think the case could have been more delicately and skilfully handled than it was by Mr. O Conor for the appellant. His opening struck me as a very subtle piece of advocacy. He went straight to the main issue of marriage or concubinage; and proceeded to argue his client s case almost entirely on the circumstantial evidence. I think I am not doing him an injustice when I say that it was only under some pressure from the Court that he even read to us the evidence of Shujayat Ali Khan and Izharuddin Ahmad at all. On the question of the dower-debt, he practically asked us to assume that a verdict in favour of the plaintiff must follow, as it were automatically, upon a finding that the marriage was proved. He laid stress on the fact that the defendants, denying that there had ever been any marriage at all, were of necessity precluded from setting up any alternative sum as the amount of the dower debt. He put it to us that the plaintiff s evidence on this point was the only evidence we have to go upon and might be said to hold the field. If I am not mistaken, he went so far. as to claim that the finding of the trial Court was in his favour on this point. I have thought it necessary to lay stress on this point. I have thought it necessary to lay stress on this presentation of the case for the appellant in order to repudiate it emphatically and to explain my reasons for approaching the consideration of the evidence on totally different lines. The decision of the Court below requires to be appreciated as a whole. In finding against the plaintiff on the question of marriage the learned Subordinate Judge has necessarily rejected the evidence of Shujayat Ali Khan and Izharuddin Ahmad and has disbelieved the plaintiff s sworn statement as to the circumstances of her wedding ceremony and the fixing, of the dower debt. He has expressed himself a little clumsily in recording his finding on the issue as to the dower-debt; but what he says amounts in reality to no more than this, that if he had believed Shujayat Ali Khan and Izharuddin Ahmad about the marriage, he could have given no valid reason for disbelieving them as to the amount of the dower-debt. His finding is in substance and effect against the plaintiff on both points. Now, in spite of Mr. O Conor s ingenious advocacy, it is after all sufficiently obvious that a careful examination of the circumstantial evidence might lead the Court to the conclusion that there must have been, at sometime or other, a lawful marriage between Raja Muhammad Salamat Khan and the plaintiff, without such a finding enhancing in the very slightest degree the credit of the witnesses Shujayat Ali Khan and Izharuddin Ahmad. The Court might feel quite certain that the marriage took place considerably later than the year 1862 A.D., that it did not take place at Patna and that these witnesses were not present at the ceremony. To put the point quite bluntly, Mr. O Conor s circumstantial evidence may or may not satisfy the Court that there must have bee a a marriage; but it can scarcely be said that it even begins to prove the amount of the dower-debt. The claim before us is one for dower debt, and not one for a share in the inheritance as widow, of the late Raja. There is no presumption in favour of a sum of Rs. 40,000; the plaintiff does not say that Raja Muhammad Salamat Khan always fixed his wife s dowry at this amount, or that he did so as a special act of favour towards herself. What she says is that in the Very respectable family from which she came the females were never given in marriage unless the bridegroom consented to a dower-debt of Rs. 40,000. The Court will believe, or disbelieve her on this point according as it accepts or rejects her account of her own antecedents generally. On the other side, the defendants have preferred evidence, which I see no reason to distrust, that the dower debt of Raja Muhammad Salamat Khan s first wife was Rs. 5,000 and that in their family this was the amount which the bridegroom ordinarily consented to give. I do not think this commits them to any admission that the plaintiff, if married to the late Raja at all, must have been married for a dowry of Rs. 5,000; they deny both the marriage and the dowry, and it is quite conceivable that a gentleman like the Raja of Azamgarh might marry a favourite mistress, a former dancing girl and prostitute, without fixing the dower-debt at the sum customary in his family in the case of an ordinary bride from a family of good position and repute.