JUDGMENT

Dar, J. - The plaintiff, Mt. Farmoodi Begam, a Pathan lady of Shajahanpur, was married to Mohammad Taqi Ahmad Khan, a Pathan, resident of Shajahanpur, on 24th June 1908. By this union a number of children were born and two grown-up daughters are now living. In April 1934 some differences, apparently of a trivial nature, arose between the husband and wife and, after a married life of over 25 years, the plaintiff left her husband's home and has brought this suit for recovery of Rs. 40,000 against him. Her case, shortly stated, is that at the time of marriage her dower was fixed, "without any specification, at a sum of Rs. 80,000 and two dinars" and that by a custom prevailing in the family and amongst the Pathans of Shajahanpur half of this is to be treated as prompt and. half as deferred. Her husband refuses to pay this sum or any other sum and she is entitled to recover the same by an action at law against him. The defendant denied the lady's dower to be Rs. 80,000 and he alleged that it was only Rs. 15,000. He further alleged that the lady had agreed to remit the whole of her dower and while leaving the defendant's home she had taken a large amount of cash and ornaments and had thus paid herself off if she had any claim for dower. The custom pleaded by the lady was also denied and it was further contended that no valid demand for the payment of dower had been made and the lady had no cause of action for the suit. The trial Court found against the plaintiff on the issue of custom. It found against the defendant on the issue of the amount of dower, remission of dower and of its payment. On the issue whether a demand had been made previous to the suit or not it expressed no decided opinion, having taken the view that the present plaint itself could be treated as a demand. It further found that 1/5th of the dower should be treated as prompt and the remaining deferred. Accordingly it granted the plaintiff a decree for Rs. 16,000 with interest from the date of the suit. Against this judgment and decree, the plaintiff and the defendant have appealed and these two appeals are now before us for consideration.

2. Some matters were in controversy in the Court below which are no longer in dispute before us. It is now conceded that the dower of the lady fixed at the time of marriage was "RS. 80,000 and two dinars without any specification," that no portion of it has been remitted or paid off and that there exists no custom according to which a proportion could be fixed as to bow much of it was prompt and how much deferred and it is for the Court to determine the amount of prompt dower according to law. The questions which have been argued before us are largely questions of law, namely whether the plaintiff has got any cause of action and whether any portion of the lady's dower can be treated as prompt and, if so, how much.

3. The defendant contends that previous to the filing of the suit the plaintiff had in fact made no demand for payment of her dower and the demand set up by her is invalid in law. Further, that the plaintiff has no right to recover prompt dower after consummation of marriage and that the amount awarded to her by the trial Court as prompt dower is unduly excessive. The plaintiff, on the other hand, contends that the amount awarded to her by the trial Court is unduly inadequate and 1/3rd of her dower should be treated as prompt. At the very outset it is necessary to determine the question of fact whether a demand for payment of dower was in fact made by the lady before she raised the action. In para. 5 of the plaint inter alia the plaintiff alleged:

Since about a month the plaintiff has been compelled to demand repeatedly her prompt dower debt from the defendant. But he always put forward excuses and ultimately he refused to pay, hence this suit.

4. In para. 6 the plaintiff alleged:

The cause of action for this suit arose on or about 23rd September 1934 when the defendant refused to pay for the last time in Shajahanpur