Judgement

Appeal (No. 90 of 1935) from a decree of the High Court (October 31, 1933) affirming a decree of the Subordinate Judge of Moradabad (January 22, 1930).

The suit out of which this appeal arose was brought by the appellants, husband and wife, as heirs, for the recovery of a one-third share of the Rs.25,000 dower payable to their daughter, Musammat Ejaz Fat ma, since deceased, upon her marriage with S. Farzand Hasan (respondent No. 1), the son of Sibti Hasan. At the time of his marriage S. Farzand Hasan was an infant without independent means. The appellants, who were entitled between them to a one-third share of their daughters estate, brought the action after the death of Sibti Hasan, and claimed a one-third share of the dower, Rs,8333~5-4, and impleaded as defendants their daughters husband and his mother, brother and sisters as the heirs of Sibti Hasan, The principal points were whether Shia Mahomedan law was applicable to the questions in issue, and if so, whether according to that law the dower debt due to the wife was payable out of the fathers estate in the hands of his heirs.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge found that the appellants had failed to prove that Sibti Hasan had entered into any undertaking to be responsible for the payment of the dower debt, and he held, following Muhammad Siddiq v. Shahab-ud-Din (1) that becoming a guardian for the marriage did not in law ipso facto involve Sibti Hasan, or his assets on his decease, in any responsibility for the payment of the dower debt. In the result he passed a decree against Farzand Hasan (defendant No.1) for the amount claimed, Rs.8333-5-4.

On appeal to the High Court (Niamat-Ullah and Collister JJ.) the view was expressed that Muhammad Siddiq v. Shahab-ud-Din (( 1927) I. L. R. 49 A, 557.) was properly an authority in Sunni Mohamedan law only. They held that the rule relating to Shia Mohamedans as stated in Shuraya-ool-Isiam to the effect that if the child is poor the obligation for the dower rests entirely on the father, had no application to the present case by reason of the provisions of s. 37 of the Bengal, Agra and Assam Civil Courts Act (XII. of 1887)—the question, in their opinion, not being one relating to " any religious usage or institution — and they held that it would be inequitable to hold a guardian or his assets responsible for a liability arising from a civil contract in the absence of an express contract by him to that effect, They accordingly dismissed the appeal. The appeal is reported at ( 1934) I. L. R. 56 A. 401.

1937-Nov. 22. Abdul Majid and Chinna Durai for the appellants. Dower is an essential feature in all Mohamedan marriages, and under the Shia Mohamedan law, by which the parties are governed, the father of a poor minor son is liable for the dower of his sons wife Baillies Digest of Moohummudan Law, Pt. II., p. 80. [Reference was also made to Muhammad Siddiq v. Shahab-ud-Din (( 1927) I. L.

R. 49 A, 557.); Deedar Hossein v. Zuhoor-oon Nissa (( 1841) 2 Moo. I. A. 441.); Abbas Ali v. Maya Ram (( 1888) I. L. R. 12 A. 229.); Hamira Bibi v. Zubaida Bibi (( 1916) L. R. 43 I. A. 294.); and to Wilsons Anglo-Muhammadan Law, p. 422c] The appellants claim relates to muhr or dower, which forms part of marriage so as to be covered by the enactments reserving to the Mohamedans their marriage law, and the dower in question is payable according to Shia law by Sibti Hasan. The money became due when the wife died, and interest is claimed from that date Mohamaya v. Ram Khelawan (( 1911) 15 Cal. L. J. 684, 687.); Woomatool Fatima Begum v. Meerunmunnissa Khanum (( 1868) 9

W. R. 318.); and Khetra Mohan Poddar v. Nishi Kumar Saha.(( 1917) 22 Cal. W. N. 488, 490.)

Chinna Durai followed.

J. E. Godfrey for the respondents. Sect. 37 of the Bengal, Agra and Assam Civil Courts Act (XII. of 1887) applies Mahomedan law to questions " regarding marriage," but dower is a civil contract arising in respect of marriag