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1. 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.

7. The next matter is whether this demand was sufficient and valid in law. The dower of the lady at the time of marriage was fixed at Rs. 80,000 and two dinars without any specification. There was no agreement between the parties and no custom exists under which it can be determined how much of it was to be treated as prompt and how much deferred and this apportionment has to be made by a decree of Court after a trial. Where the amount of dower to be treated as prompt is to be assessed by a decree of Court after contest, is it absolutely essential for the success of the claim to make a previous demand and if so in what terms? Whether the demand should be wholly dispensed with or whether it should be of a general nature for settlement of the claim without fixing or specifying any amount or whether an exaggerated and extravagant demand is permissible even up to the entire amount of the dower or whether the demand should be a reasonable and bona fide one? These were some of the questions which were debated at great length before us.

8. The defendant contends that in a claim for prompt dower under Mahomedan law, a previous demand and refusal by the plain, tiff is a part of the plaintiff's cause of action. A dower debt is one of those obligations in which a creditor has to seek his debtor and not the debtor his creditor and if a valid and proper demand has not been made antecedent to the suit the action is bound to fail for want of a cause of action. The defendant further contends that in a case where prompt dower is not fixed by agreement under custom and has got to be fixed by Court no valid and proper demand can be made till the amount is fixed and therefore an action would not lie at all for the recovery of prompt dower and a dower therefore in such a case must be taken to be a deferred dower. Alternatively, he contends that a plaintiff must, before raising the action, fix up a bona fide and reasonable amount as her prompt dower and demand the same before filing a suit to recover it and an exaggerated demand embracing the entire amount of dower can never be a valid demand for a claim of half the amount of dower which later on the plaintiff decides to bring in Court. The plaintiff, on the other hand, contends that dower debt is like any other money, a debt with a promise to pay an demand, and in a case like this the demand is not an essential part of a cause of action. An action for recovery of debt would lie without making a previous demand. The basic principles which govern these contentions have been the subject of discussion by high judicial authority. In a Full Bench decision in Nawab Bahadoor Jung Khan v. Mt. Uzeez Begum (1843-46) S.D.N.W.P. 180 (F.B.) the nature of prompt dower is explained as follows:

23. The learned Judge then refers to that passage in Hedaya where it is said that it is the wife's right that she may deny herself to her husband until she received the dower and so on. It seems to us that under Mahomedan law consummation of marriage cannot possibly have the effect of making the prompt dower as deferred and the wife has an absolute right to bring an action for the recovery of prompt dower even after consummation whenever she chooses to do so. There remains now the question as to the amount of dower which should be treated as prompt and be allowed to the plaintiff in the present suit. The rule for the guidance of the Court in this matter is stated in Mulla's Principles of Mahomedan law, Edn. 11, at p. 221, para. 221(2) in the following words: