1870 RANI KHIJA- NISSA BEGUM. while the marriage is in force, makes a demand for payment, does she not bring herself under the operation of the Law of MUSSAMAT Limitation? and if she fail to bring her action within the period allowed by law for bringing such suits, would not her claim to RANI RISANthe prompt dower be barred as effectually as any other claim? If this be the law, it may be said that the reconciliation between the parties is almost hopeless, and the effect of the Privy Council's ruling in Ameeroonissa v. Mooradoonissa (1) is evaded. Married people quarrel, and in anger, the wife demands her dower; they make friends, and live peaceably as man and wife again; in such case, can it be said that the wife must, within a fixed period, bring her action for the prompt dower, or lose her right to it? Quarrels of this kind may occur continually between married couples, who may afterwards be reconciled; but if the wife be compelled by law to bring her action for dower, an almost insuperable difficulty to reconciliation would arise; and after the husband's death, the heirs would certainly plead limitation, on the allegation, true or false, that a demand for the dower had been made during the life of the husband, which had not been followed up by a suit in proper time, and so defeat the claim of the widow for that portion of the dower which was prompt. It is very questionable whether the Privy Council, in laying down the general rule in Ameeroonissa v. Mooradoonissa (1) contemplated a case like the present where the wife living for many years separate from her husband formally demanded, as is alleged in Court, her dower from him. Had the question before their Lordships been that which is before us, it is not improbable that they might have held, under the circumstances, that the claim for prompt dower was barred by limitation. At any rate, their ruling in Ameeroonissa v. Mooradoonissa (1) does not, I think, meet all the requirements of the case. All they laid down in respect to the dower, which was prompt, was that the wife had a right of suit without a previous demand, and that she was not obliged to sue her husband immediately or in his life-time. If however she did make the demand, and that not in a périod of momentary (1) 6 Moore's I. A., 211. RANI KHIJA RANNISSA NISSA BEGUM. 1870 anger, after some domestic squabble settled as speedily as exMUSSAMAT cited, and from which no abiding interruption of domestic felicity ensued; but after many years of separation, when all attempts KANI RISAN- at reconciliation had failed, and that demand was made openly, deliberately, and publicly, it appears to me that, to such a case, the ruling of the Privy Council so frequently quoted, cannot, and does not, apply, and that a party making such a demand is as much barred from bringing her suit to enforce her claim within the period allowed by law, as is any other person seeking to enforce a written contract. But it is said that no demand has been made; that plaintiff's application in 1861 to sue as a pauper can at best be looked upon as a notice, but not as a demand. On 3rd May 1861, the plaintiff filed a petition of plaint in the Court of the Principal Sudder Ameen, setting forth that, on the occasion of her marriage with Raja Enaet Hossein, a kabinnama, by which a lakh of rupees had been settled upon her, was executed by her husband; that of this, part, or one-fourth, was prompt, and part, or three-fourths, deferred; that, of the prompt dower, her husband had on various occasions paid her rupees 2,000; and she now sued to recover the balance; but being devoid of means, and unable to pay the stamp fees, she prayed that she might be allowed to file her suit as a pauper. On the 1st July following, a petition on the part of Raja Enaet Hossein was put in by his authorized vakeels, Moulvi Afzal Ali, Charles Chapman, and Moulvi Farzand Ali, to the effect that the plaintiff was not a pauper, the Raja at the time of her marriage having given her jewels and cash to the value of rupees 10,000; that the kabinnama produced by the plaintiff was a forgery; and that plaintiff's dower was never fixed at a lakh of rupees, nor was a deed of any kind drawn up and executed; but according to the custom of the family, the plaintiff's dower was verbally fixed at rupees 5,000. Further objections are taken to the deed that it does not bear the Raja's seal; that the Cazi's seal thereon was obtained by collusion between him and members of the plaintiff's family; that the claim for the prompt portion of the dower was barred by limitation, not having been sued for within twelve years of the marriage, and that the suit for the remainder of the dower was 1870 MUSSAMAT RANI KHIJA RANNISSA premature. He denies having ever paid any part of the prompt dower; and urges that, if any such payment had been made, it would have been entered on the back of the deed, had that deed been a genuine document; and he adds that the allegation of RANI RISANpayment is made to avoid the effect of the Law of Limitation. V. NISSA BEGUM. On 7th January 1862, Raja Enaet Hossein was examined in Court by the Principal Sudder Ameen, and the first question put to him was, "You have stated in your answer that ornaments to "the value of rupees 10,000 were given by you to the petitioner, “Rani Khijarannissa ; that some of these ornaments to the value of "rupees 6,000 were pledged by the petitioner for a sum of "rupees 3,000 to a mahajan, which were afterwards redeemed and "sent by you to the rani, the plaintiff. When were they sent, "and are they now with the plaintiff, or have they been disposed "of?" In reply to this question, the Raja gives the same details as are given in his petition of 1st July 1861 regarding these ornaments, and adds what was also stated in that petition, that the plaintiff was in receipt of an allowance of rupees 25 a month from her brother Sifallah. After this examination, a proceeding dated 27th January 1862 was drawn up by the Principal Sudder Ameen, in which he states that the plaintiff had filed a suit to recover the amount of her dower under a deed bearing date 8th Rabiassani 1254 = 18th Asar 1246 Mulki (July 1st, 1870); that she prayed for permission to sue as a pauper; that the case came on, Munshi Ahmed being pleader for the plaintiff, and M. Afzal Ali, M. Farzand Ali, and Mr. Chapman, pleaders for the defendant; and after reading the record, and hearing argument, it was ordered that the application of the petitioner to be allowed to sue as a pauper be rejected with costs. These proceedings appear to have been conducted under the provisions of section 305, Act VIII of 1859, and related only to the question whether plaintiff was or was not a pauper, and this was decided against her; but this much may be gathered from these proceedings, that Raja Enaet Hossein adopted the petition of 1st July 1861, put in by his vakeels in his name as his own, and must be considered to have accepted the statements made in it. He does. not repudiate any part of it; but when the question is put, "You said in your answer," i. e., 1st July 1861, he replies by repeating 1870 MUSSAMAT RANI KHIJA RANNISSA v. NISSA BEGUM. statements found in that answer or petition, which also contains a direct and distinct repudiation of plaintiff's demand for dower. But still it is said that, as the application to sue as a pauper RANI RISAN- was rejected, there was no demand, but only notice of a claim. I cannot consider the application in that light. It was drawn up as a plaint in a regular suit; and had the application for permission to sue as a pauper, which is written at the foot of the plaint been allowed, the petition would, under the provisions of section 308, Act VIII of 1859, have been numbered and registered, and been deemed to be the plaint in the suit. By a ruling of the High Court in Golucknath Dutt v. Seetaram Gowar (1), it was held that the suit was commenced when the application to sue in forma pauperis was filed; and in another case, Vinayak Dhavle v. Bhau Samvat (2), it was held that a pauper suit commences for the purpose of limitation on the day when the petition to sue in formâ pauperis is presented to the Court, and not on the day when the application being granted, it is numbered and registered. It cannot be said that Raja Enaet Hossein was ignorant of this demand, or that the petition of 1st July 1861, in which he distinctly denied the plaintiff's claim to dower, was not written with his knowledge and consent, seeing that it was presented by his authorized pleaders who were also present, and argued the case when the application was rejected, and he himself, when examined by the Principal Sudder Ameen, admitted it to be his answer, though he did not speak to all its details. Looking, therefore, upon the Rani's application to be permitted to sue as a pauper, to be a clear, distinct, and positive demand made in a public Court to recover her dower, a demand which was as distinctly rejected by the Raja, I think her claim for so much of the dower as is prompt must be held to be barred by the Law of Limitation, clause 9, section 1, Act XIV of 1859; the suit not having been brought within three years from the date of the cause of action, viz., the refusal on the Raja's part to pay the demand then made. On the 2nd point taken before us in appeal, we are against the appellant, for it is clear, both from the Mahomedan law and the current of decisions, that deferred dower can be demanded (1) 1 Hay's Rep., 378. (2) 4 Bom. H. C. Rep., A. C. J., 39. 1870 RANI KHIJA RANNISSA v. only when the marriage is dissolved, either by divorce or by the death of the husband. If, however, the wife does demand this MUSSAMAT dower during the period of coverture, her claim can only be treated as premature; for such demand and refusal on the part RANI RISANof the husband do not give her any immediate cause of action, from which the period of limitation is to be counted, for her cause of action for deferred dower can, under no circumstances, arise during the continuance of the marriage.. HOBHOUSE, J.-I agree in the judgment of Mr. Justice Loch. I think the suit for that part of the dower which is prompt, is barred by the application of the Statute of Limitations, clause 9, section 1, Act XIV of 1859. I observe that, by the preamble to that Act, it is provided that all suits shall be governed by the periods of limitation declared by that Act, any law to the contrary notwithstanding. Then this suit is admittedly a suit on a written contract not registered; and by clause 9, section 1 of the Act, it is provided that to such suits the period of limitation applicable shall be three years from the date of the breach of contract. Now here the breach of contract seems to me clearly to have occurred either at the time of the marriage, or at the latest when the plaintiff demanded, and her late husband refused to pay the dower claimed on the contract. That was in 1861, and the suit was not instituted until 1868, and so was not in time for the prompt dower. NISSA BEGUM, |