Manija Khanum Alias Bakka Khanum vs Khaja Mahomed Asghur on 21 March, 1887

Calcutta High Court
Manija Khanum Alias Bakka Khanum vs Khaja Mahomed Asghur on 21 March, 1887
Equivalent citations: (1887) ILR 14 Cal 420
Author: T A O’Klnealy
Bench: Tottenham, O’Kinealy


Tottenham and O’Klnealy, JJ.

1. It is clear to us upon the facts of the case that the plaintiff would be entitled to receive some dower, and probably not less than Rs. 5,000, if she had framed her suit in such a way that the Court could give it to her; but we find ourselves, be our regret, unable to sustain the decree of the lower Court. The suit was brought upon a written contract and upon nothing else. That written contract was not produced, and in the opinion of the lower Court the evidence admitted was not sufficient to establish its execution, and as to that finding we see no reason to differ from the Court below. In the first place it is very difficult to say whether the plaintiff made out any case for the admission of secondary evidence. We are not convinced that there ever was any valid written document in existence, and we are certainly not convinced that, if there was, it was in the possession of her father or her brother the Nawab Ashanoollah. That being so we think that the lower Court was not right in decreeing the suit upon the basis of the oral contract not alleged by the plaintiff and not admitted by the other side. If it could be held that the conduct or pleadings of the parties in the suit led the Court below to treat the question at issue as one depending on the existence of any custom in the family to give a dower of Rs. 10,000, and if the evidence of that were sufficient to establish it, we might have been able to leave the decree undisturbed. But we do not find that, in reality, although the issue laid down was a tolerably wide one, the defendant went into evidence as to the custom of the family in fixing the dower. The evidence as to which the defendant went to the trial with regard to custom was as to what portion of her dower was prompt and what portion deferred, and as to the custom of reserving the right of divorce to the wife.

2. We think that the plaintiff has failed to establish the case set up by her, and that she can not obtain a decree upon the basis that she did not set up.

3. We reverse the decree of the Court below and dismiss the plaintiff’s suit with costs.

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