Judgement

Consolidated Appeals from two decrees of the High Court (August 11, 1910) varying two decrees of the Subordinate Judge of Gorakhpur (September 15, 1906).

The first respondent, defendant in both suits, was the widow of Inayat Ullah, who died in 1892. The suits were instituted in 1906 by the other heirs of Inayat Ullah to recover their shares in the estate, in the possession of which the first respondent had been allowed to remain in exercise of her lien for dower. The plaintiffs alleged that the dower had been satisfied out of the profits. The sole question was whether in accounting for the profits of the estate the widow was entitled to interest, claimed at 6 per cent., upon her dower debt. The facts are stated in the judgment of their Lordships.

The Subordinate Judge framed several issues, of which the following only were material to the appeal (8.) According to law and custom, is interest allowable upon dower debt ? (9.) Is the defendant entitled to any, and what, damages by reason of non- payment of her dower debt ?

The two suits were tried together. The Subordinate Judge held that the defendant was entitled to the interest claimed, and found that the net annual income received by her from the estate was less than the annual amount of interest due to her. As the plaintiffs had not offered to pay the whole of the dower debt, he dismissed the suits.

The plaintiffs in both suits appealed to the High Court, and the appeals were heard together by Sir John Stanley C. J., Banerji J., and Karamat Husain J. The last named learned judge in delivering the leading judgment held that the question of the payment of interest was not one regarding " marriage," and that consequently Mahomedan law was not made applicable by Act XII. of 1887, s. 37, sub-s. 1 ; that the dower being a debt, the matter was not one within s. 37, sub-s. 2, of that Act, namely, a matter as to which no law was applicable and which had to be determined solely " according to justice, equity and good conscience," though, if it were, he deemed it unjust and inequitable that a widow should be held liable to account for the profits of the estate without being entitled to a reasonable rate of interest upon the dower. After considering the authorities, he held that the preponderance was in favour of allowing interest. On the further question whether the plaintiffs were entitled to recover their respective shares of the estate on payment of a proportionate part of the dower debt, the learned judge held that it was reasonable to direct that they should do so. The learned Chief Justice and Banerji J. delivered judgments concurring with that of Karamat Husain J. It was accordingly decreed that the decrees of the Subordinate Judge be set aside and decrees passed for possession provided that the respective plaintiffs paid the amounts named in the decrees within six months, but that in default of payment by any of the plaintiffs his suit should be dismissed.

The appeal is reported at I. L. R. 33 Allah. 182.

1916. May 29, 30 ; June 1, 2. Sir Erle Richards, K.C., and Dube, for the appellants. Those who claim interest upon a debt must show that they are entitled to it either by contract or by law. There was no agreement to pay interest, and the appellants contend (1.) that the matter has to be determined by Mahomedan law, under which interest is not recoverable, and (2.) that the case is not within the Interest Act (XXXII. of 1839). Under Act XII. of 1887, s. 37, sub-s. 1, Mahomedan law is to be applied in any question between Mahomedans as to " marriage." That word includes dower, as appears from a comparison of the Act with the Civil Suits Acts of other provinces. The lien is recognized solely because dower is part of the law of marriage. The payment of interest is contrary to the precepts of Mahomedan law. The widows lien in respect of her dower is on the same footing in Mahomedan law as that of any other creditor who has obtained possession as security. It extends only