KULSAMBI Vs. BILANKHAN

JUDGEMENT

(1.) THE plaintiff-appellant, Kulsambi, is the wife of defendant 1, Bilankhan. The other 5 defendants held decrees against Bilankhan and in execution thereof attached the property now in suit, consisting of five fields and some buildings in mouza Adula Bazar, in the Daryapur Taluk. Kulsambi, the plaintiff, preferred objections in the execution proceedings; but they were disallowed and she has now brought her suit Under Order 21, Rule 63, for a declaration that the property is hers and in her possession and is not liable to be attached and sold in execution of the decrees obtained by defendants 2 to 6 against defendant 1.

(2.) THE plaintiff base her claim to the property in suit on a decree in her favour passed by the Additional District Judge, Amraoti, on 13th August 1925 in Civil Suit No. 15 of 1925. The circumstances in which this decree came to be passed, according to the plaint, are as follows: At the time of her marriage to Bilankhan Kulsambi's dower was fixed at Rs. 50,000, 100 ashrafis and 50 dinars. Subsequently she lent to her husband Rs. 1,000. When she demanded from her husband payment of her dower and repayment of the loan, he raised objections and their dispute was referred to two arbitrators, Mr. Sharfuddin, pleader of Amraoti, and Gulam Dastagirkhan of Kholapur. These arbitrators were unable to agree and the matter was referred to an umpire, Syed Muzaffar Husain, pleader of Amraoti. A copy of his award has been filed as Ex. P. 6. It shows that the plaintiff and her husband were agreed as to the amount of dower and as to the payment by the plaintiff to her husband of Rs. 1,000, but differed as to the nature of the dower, that is, whether it was prompt or deferred, and as to whether the Rs. 1,000 had been given as a loan or a gift. The umpire decided that the dower was prompt and that the Rs. 1,000 was a loan and accordingly found that the plaintiff was entitled to recover Rs. 53,625. He awarded her the property now in suit in full satisfaction of her claim and directed her to be put in possession as full owner, subject to the right of a mortgagee and to her allowing Rs. 400 annually and a house to reside in to her husband during his lifetime. In terms of this award the decree by the Additional District Judge, Amraoti, was passed.

(3.) AS regards the amount of the dower, we are not prepared to accept the lower Court's finding. Apart from the evidence of the plaintiff herself, three witnesses, Muhammad Azam (P.W. 1), Nur Mohammad (P.W. 3) and Mohammad Nazim (P.W. 4), have deposed that the sum fixed was Rs. 50,000. Muhammad Azam says that 100 ashrafis and 50 dinars were also to be paid. Muhammad Nazim apparently does not remember how many dinars were to be paid; and Nur Muhammad differs as to the number of ashrafis and dinars from the plaintiff and Muhammad Azam; but we agree that the discrepancies on this point are immaterial and we are not prepared to follow the lower Court in rejecting the evidence because it shows the mehar or dower to have been fixed at an absurdly high figure: it is by no means uncommon for the dower of a Muhammadan wife to be fixed at a figure which is out of all proportion to the husband's means. Nor can we accept the evidence of Dulekhan (D.W. 1) as sufficient to rebut that of the plaintiff's witnesses. It is on his evidence that the lower Court has found that the dower was settled at Rs. 5,000, 10 ashrafis and 2 dinars, and that it was not settled whether it was to be prompt or deferred. It is true that he is a stepbrother of the plaintiff; but on his own evidence he was only 14 years of age when the plaintiff was married to defendant 1 and his knowledge as to the dower may well bo doubted. It cannot be assumed that his evidence is true because it is against the interest of a near relative as has been pointed out on behalf of the plaintiff, he appears to be at odds with his sister over her claim to a share in their father's property.