Patna High Court
Md. Janudul Haque vs Md. Zubair Haider And Anr. on 23 February, 1981
Equivalent citations: AIR1981PAT345, AIR 1981 PATNA 345
ORDER S. Narain, J.
1. One Mossomat Afsa Khatton, widow of Md. Zamila Ahmad, brought Money Suit No. 223 of 1976 in the court of the Subordinate Judge, Patna, in which the principal relict claimed was a decree for a sum of Rupees 40,128/- with interest pendente lite thereon., against the two brothers of her husband. According to the plaintiff at the time of her marriage the dower was fixed at Rs. 40,000/- with two 'dinara surkh' eauivalent to Rs. 128/-and though the marriage was performed and consummated, the dower remained unpaid and was payable out of the estate of her deceased husband to which the two defendants, brothers of her late husband had succeeded alone with the plaintiff.
2. During the pendency of the suit, the sole plaintiff died and Md. Zubair Haider filed a petition for being substituted in her place, In the petition for substitution which was filed on 13-11-73, Md. Zubair Haider alleged that the deceased plaintiff who died on 25-12-1973 had verballv disposed of her dower debt by will (wasiatnama) along with other property to the petitioner and on the death of the plaintiff, plaintiff's heirs had given their consent to the aforesaid testamentory disposition. It was also alleged in the said petition that on the death of the plaintiff, Md. Zubair Haider was representing the estate of the deceased and he was intermeddling with the estate of the deceased and was dealing with the estate involved in the present suit. The petition for substitution was resisted by defendant No. 2. According to defendant No. 2 who filed a rejoinder to the said petition for substitution, the suit had abated on the death of the original plaintiff as the right to sue did not survive at all because the right to recover dower debt was not heritable and, therefore, the petition for substitution was not maintainable. Defendant No. 2, also denied that the original plaintiff had made any will in respect of her dower debt in favour of any person much less the petitioner Zubair Haider and asserted that in order to ensure that the soul of her deceased husband rest in peace, the plaintiff had renounced her claim to the dower debt due to her from her deceased husband. Defendant No. 2 also filed a written statement contesting the liability to pay the dower debt. In the written statement defendant No. 2 maintained that the dower fixed was only Rs. 7,000/- and was paid to the plaintiff by her husband during his lifetime. The further defence was that the plaintiff's husband had no landed property except a big house and the property mentioned in the plaint was the exclusive property of the defendant and that a car left by Zubair Haider was in the sole possession of the plaintiff.
3. By his order dated 12-2-1980, the learned Subordinate Judge in the seism of the suit allowed the prayer for substitution and directed that Md. Zubair Haider be substituted in place of the plaintiff. Defendant No. 2 being aggrieved by the aforesaid order has come up to this court in revision.
4. Sri. Sarkar, appearing on behalf of the petitioner has impugned the order of substitution on two grounds. The first ground is that a right to claim the dower debt was a right personal to the original plaintiff, Mossomat Bibi Abas Khatoon, and that the right to sue for the said dower debt did not survive to the heirs or legal representative of the plaintiff, and, therefore, no order for substitution under Order 22 C. P. C. read with Rule 11 of the said order could be made. In my opinion, the contention that the right to sue for the dower debt does not survive to the heirs or legal representative of the woman who was entitled to the dower debt, cannot be accepted. It is well settled that the claim for unpaid dower constitutes a debt. In Mulla's Principles of Mohamdan Law it has been stated:--
"If the dower is not paid, the wife and after her death, her heirs, may sue for it."
The same view was expressed by Bose, J., as he then was, in Bibi Janbi v. Abbas Ali (AIR 1941 Nag 167). The aforesaid view is fully supported by the following observations of the Supreme Court, speaking through Siddique, J., in Kapore Chand v. Kidar Nissa Begum (AIR 1953 SC 413 at p. 414):
"The dower debt becomes her properly and it devolves on her heirs and has to be paid out of the estate of the husband. It has been described as a debt upon the husband to be paid out of his estate."
5. My attention has not been drawn to any decision in which it has been held that claim for dower debt is not heritable. The decision in Zobair Ahmad v. Jainandan Pd. Singh (AIR 1960 Pat 147) is clearly distinguishable, what was held not to be property was not the dower debt but the interest which the widow had in the property in her possession in lieu of dower debt.
6. In mv opinion, however, there is 'substance in the second contention advanced on behalf of the petitioner, namely, that the court below erred in the exercise of its jurisdiction in allowing the application for substitution without expressly recording a finding that in view of the will in his favour, the petitioner before it viz. Md. Zubair Haider was the legal representative of the deceased plaintiff. As already stated, defendant No. 2 had specifically challenged the execution of any will by the deceased and, therefore, had asserted that the petitioner was not the legatee under the will of the plaintiff and therefore, not her legal representative. It was, therefore, a case in which the question arose as to whether the petitioner before the court below was or was not the legal representative of the deceased plaintiff. According to Order 22. Rule 5 C. P. C. such a Question shall be determined by the court subject to the proviso which in this case has no application. The court below therefore, had to record a specific finding on the question whether the petitioner before it was or was not the legal representative of the deceased plaintiff. It has not recorded any specific finding on that point. The point has been dealt with by the court below thus:--
"It has been submitted on behalf of the petitioner that the will can be challenged by the heirs who have not come forward to challenge the said will and as such defendant No. 2 could not legally challenge the said will on the basis of which the petitioner has come for being substituted. There is substance in the contention of the petitioner."
The court below, therefore, has refused to determine the question whether any will had been executed in favour of the petitioner before it on the ground that the will could be challenged only by the heirs of the deceased. Now under Order 22, Rule 5 of C. P. C. it was the duty of the court to determine whether the petitioner was the legal representative of the deceased plaintiff and for determining that Question it was necessary for it to investigate and decide whether any will in favour of the petitioner as alleged by him had been executed by the deceased or in the alternative to record a specific finding that the petitioner had intermeddled with the estate of the deceased. That it omitted to do. The order of substitution has, therefore, been passed in contravention of the provision of Order 22, Rule 5 C. P. C. and, therefore, illegally and with material illegality or irregularity in the exercise of its jurisdiction.
7. Sri Asghar Hussain appearing on behalf of the opposite party No. 1 who was the petitioner in the court below contended that there is an implied finding that the petitioner was the legal representative of the deceased plaintiff as later on the court below has said that the 'petitioner has rigthly come up for being substituted in the place of the plaintiff as her legal representative. The learned Subordinate Judge has come to that conclusion not because he had found that the petitioner was the legal representative of the deceased but because he was of the opinion that the question of validity of the will could not be gone into at the instance of the defendants who were not the heirs of the deceased plaintiff. This contention cannot, therefore, be accepted.
8. Sri Asghar Hussain also argued that in this case there could be no doubt that the petitioner was the legal representative of the deceased in as much as he had clearly said that he had intermeddled with the estate of the deceased and was dealing with the estate involved in the suit and there was no denial of this averment in the rejoinder filed on behalf of the defendants and under Section 2 (11) C. P. C. a person who intermeddles with the estate of the deceased is also regarded as a legal representative for certain purpose. But the court below has not ordered the substitution on the around that the petitioner before it had intermeddled with the estate of the deceased and was therefore, the legal representative. As a matter of fact, the learned Subordinate Judge in the impugned order does not even refer to this alternative claim of the petitioner on the point of his being the legal representative of the deceased plaintiff.
9. I may mention that on the basis of the decision reported in AIR 1915 All 419, it was contended on behalf of the petitioner in this court that the intermeddler was in the position of executor de son tort and while he could sue in respect of the estate of the deceased he cannot sue for recovering any debt due to the estate of the deceased and, therefore, he could not be impleaded as legal representative for prosecuting the claim of the deceased for the dower debt. This contention was combated on behalf of the opposite party No. 2. I do not think it proper to express any opinion on this question at this stage. Even if this question is decided against the petitioner in the court below, it has still to be decided if he was the legal representative of the deceased on the basis of the will propounded by him. The court below will decide after taking such evidence as it thinks necessary, whether any will was executed by the deceased plaintiff in favour of the petitioner before it and whether the petitioner, before it was the legal representative of the deceased in his capacity as legatee. It would further decide whether he can be substituted in place of the deceased plaintiff in respect of the estate in the suit for recovery of dower as a person who has intermeddled with the estate of the deceased.
10. I would, accordingly, allow this application, set aside the order of the learned Subordinate Judge directing the substitution of the petitioner before it who is opposite party No. 1 in this court in place of the deceased plaintiff and remand the matter to the court below for fresh decision of the substitution matter in accordance with law in the light of the observation made above. In the circumstances of the case, there would be no order as to costs.