MALIK IFTIKHAR WALI KHAN Vs. SARWARI BEGAM

JUDGEMENT

(1.) This is a defendant's appeal in a suit for recovery of dower debt of one Mt. Shikoh Ara Begam alias Sajjan Begam, who was the wife of Malik Iftikhar Wali Khan, the appellant.

(2.) Mt. Shikoh Ara Begam died on 6 November 1922, and the plaintiff in her own right and as purchaser of the share of her husband of the amount due for dower from defendant 1, has instituted this suit for recovery of a sum of Rs. 62,687-8-0. It is admitted by the defendant that the dower debt was fixed at 1,25,000 and 25 sovereigns.

(3.) The defence put forward by the appellant was that the plaintiff and her husband caused the marriage of the defendant to be performed by practising fraud, that the fraud was that Shikoh Ara Begam was suffering from phthysis and unable to move about on account of illness. The marriage admittedly took place on 26 August 1921. The rukhsat ceremony took place on 26 March 1921. The case of the defendant is, as set out in his written statement para. 11, that when Shikoh Ara Begam was sent to the defendant's house in 1922 it became apparent to the defendant that Shikoh Ara Begam was suffering from phthysis and unable to move about, that the defendant did not, after he came to know of the fraud, either directly, or indirectly, ratify the marriage, and that there was no consummation of the marriage, nor was there any possibility of the consummation of the marriage on account of the illness of Shikoh Ara Begam. The defendant further pleaded that in spite of the fact that there was no relation of husband and wife between the defendant and Shikoh Ara Begam, the latter, while she was ill and had no hope of her recovery, remitted the amount of the dower, although the dower would never have become payable. The learned Subordinate Judge framed various issues, but the main issues with which we are concerned in the appeal are issues 1 and 6. Issue 2 relates to the remission of the dower by Shikoh Ara Begam. The learned Subordinate Judge has recorded his finding in favour of the plaintiff and against the defendant, and as regards issue 2 the matter is so clear that it is unnecessary to go into it, nor has the plea taken in the memorandum of appeal about this issue been seriously pressed before us. We therefore find that Shikoh Ara Begam did not remit her dower as pleaded by the defendant.