PRIVY COUNCIL

                     Syed Sabir Hussain

                     Vs.

                     S. Farzand Hasan

                      P.C.A.No.90 of 1935
(Lord Macmillan, Sir ShadiLal and Sir George Rankin JJ.)

                     16.12.1937

                     JUDGMENT

SIR GEORGE RANKINJ.

1. This appeal is brought by the plaintiffs from a decree of the High Court at
Allahabad dated 31st October 1983, affirming a decree of the Subordinate Judge at
Moradabad dated 22nd January 1930. The appellants are the father and mother of one
Mt. EjazFatma, who died on 19th March 1926, aged about 21 years. On 17th August
1914 she had been married at the age of nine to the infant son of one SibtiHasan. The
husband's name was FarzandHasan (defendant 1). At the time of the marriage, he was
only nine or ten years old. The amount of dower agreed upon at the time of the
marriage was Rs. 25,000 : it is evidenced by the entry in the register of Ali Husain,
the qazi who solemnized the marriage, and is not in dispute. Husband and wife lived
together from 1921 till the wife's death in 1926. The appellants by their suit, which
was brought on 16th March 1929, after the death of SibtiHasan, claimed as heirs of
EjazFatma, their daughter, entitled between them to a one-third share of her estate.
They impleaded her husband, FarzandHasan, his mother, brother and sisters, and
claimed from them as the heirs of SibtiHasan, deceased, a one-third share (Rs. 8,333-
5-4) of the dower due to EjazFatma, alleging that this alliance was made at the desire
of SaiyedSibtiHasan and he had himself taken the personal liability of payment of the
dower debt.

2. At the trial the appellants sought to prove that SibtiHasan had at the time of the
marriage made an express promise to become liable for the dower as a surety for his
son. This was disbelieved by the trial Judge, whose finding on the point was not
impugned in the High Court. The respondents, on the other hand, denied that
SibtiHasan had been present at the marriage or had acted therein as the guardian of his
son. This denial has been disbelieved by both Courts in India, and before the Board it
is not in dispute that the marriage was entered into by authority of SibtiHasan as father
of the infant bridegroom and of the appellant SabirHasan as father of the infant bride.
These two men indeed were relatives and on the same day the appellants' son was
married to SibtiHasan's daughter (defendant 3). Now the parties are Shias; and before
the Courts in India and before the Board the appellants have contended that, according
to the Mahomedan law applicable to Shias, SibtiHasan became liable to pay the dower
of EjazFatma by reason of the fact that his infant son FarzandHasan had no means of
his own at the time SibtiHasan married him to EjazFatma. For this proposition of law
the appellants vouch the authority of the Suraya (Shuraya-ool- Islam). In Book I,
which treats of nikah or marriage, the fifth chapter treats of muhr or dower. of this
chapter the third section, headed "The Laws of Dower", deals with 15 "cases" giving a
statement of the law applicable to each. This is followed by five further cases
described as " branches from the preceding " and of these the fourth is as follows :

       Fourth :
       If one should contract his infant son in marriage, and the child has independent
       means of his own, he is liable for the dower. If the child is poor, the obligation
       rests entirely on the father, and in the event of his death must be discharged out
       of the whole of his property, whether the child should arrive at maturity and
       become wealthy, or die before it. If therefore the father should have paid the
       dower, and the youth should come to maturity and then divorce his wife before
       coition, the son and not the father has a right to reclaim half the dower, the
       payment by the father being considered in the light of the law, as a gift to the
       son.
3. The learned Judges of the High Court (Niamatullah and Collister JJ.) state that the
Sharah Loma gives the same rules, and that they have not been able to find any book
of authority on Shia law which conflicts with these authorities upon the point. On this
footing, it would seem to follow from the well-known principle established by the
Board's decision in DeedarHossein v. Zuhoor-oon-Nissathat the doctrine of the Suraya
should be applied to the present case. Both Courts in India have however refused to
apply it. The learned trial Judge considered that it was not consonant with justice,
equity and good conscience. The High Court rightly noticed that if it be deemed to be
a rule regarding " marriage " or " any religious usage or institution " then Section 37,
Bengal, Agra and Assam Civil Courts Act (12 of 1887) applies the Mahomedan law
as such. But they did not think that the phrase " any religious usage or institution "
covered the present case nor that the rule relied upon was a convenient or equitable
rule, particularly in view of the practice prevalent in the province to stipulate for
excessive sums as dower. They observed :

       The only contention which, in our opinion, can be put forward is that the
       question arising in this case is one "regarding marriage"; but it seems to us that
       the rule laid down in Shuraya-ul-Islam is no more than a canon of interpretation.
       The author is of opinion that where a guardian for marriage agrees, on behalf of
       his minor ward, to pay a certain amount of dower, there is an implication, that,
       in case the minor has no means to pay, the guardian would be deemed to be a
       surety for due payment. The Sunni doctors, on the other hand, do not construe
       such an agreement as implying a personal undertaking. The rule may also be
       considered as a rule of evidence in so far that a personal undertaking by the
       guardian to pay dower, in case the minor is found to have no means of paying it,
       should be presumed. In any view of the matter, the vicarious liability of the
       father arises not from any substantive rule of Shia law relating to marriage, but
       is the result of deduction from given circumstances, and as such British Indian
       Courts are to be guided not by Muhammadan law but by rules of construction
       generally applicable or by the Indian Evidence Act. We entertain no doubt that a
       Shia father entering into any other contract, as guardian of his minor son,
       involving a pecuniary obligation cannot be saddled with personal liability by
       British Indian Courts. The agreement to pay dower in the same circumstances
       cannot be placed on a different footing. The liability, if it exists, arises from a
       civil contract and should be determined by the law applicable to contracts made
       by an authorized guardian.
4. There is no rule of general law in force in this province which justifies an inference
that a guardian, entering into a contract on behalf of his minor son, renders himself
liable as surety in the absence of an express contract to that effect nor is there anything
in the Indian Evidence Act which justifies a presumption from the circumstances of
such a case that a guardian makes himself personally liable.

5. This decision of the High Court does not proceed upon the view that the question
concerning dower in the present case is not one "regarding marriage"; nor do they in
the end dispute that the substantive law applicable to questions of dower under the Act
of 1887 is the Mahomedan law of the school or sect to which the parties belong. This
has however been disputed before the Board and their Lordships think it necessary to
examine the matter with some care. In the provinces of Oudh, the Punjab, the Central
Provinces, the North. West Frontier Province, and AjmereMerwara, "dower" is one of
the topics expressly mentioned by the Act which regulates the Civil Courts as subject-
matters to which, in cases where the parties are Mahomedans, the Mahomedan law is
to be applied as the rule of decision. Whether the position is in any way different in
the provinces of Bengal, Bihar, Agra, Assam, under the Act of 1887, or in Madras
under the similar language of Act 3 of 1873, is the question at issue. The phrase used
in these Acts is "any question regarding succession, inheritance, marriage or caste or
any religious usage or institution. " The topics of divorce, dower, betrothal, family
relations, are not particularized as in the enactments of other provinces, but in their
Lordships' view this does not import an intention that the social and family life of
Muslims should be differently regarded from province to province; or that in Bengal,
Agra or Madras Muslims are not to be governed in such matters by their own personal
law. The terms of Section 37 of the Act of 1887 merely repeat those of Section 24 of
Act 6 of 1871, which in turn reproduce those of Section 15 of Bengal Regulation 4 of
1793, to which the Company's Courts had always given a wide interpretation and to
which indeed they had in practice added: Zohoroodeen v. BaharoollahSircar, (1864)
WR 185. This Board in MoonsheeBusloorRuheem v. Shums-oon-nissaBegumand the
Full Bench of the Allahabad High Court in Abdul Kadir v. Salima, have in no
uncertain terms accepted these enactments as securing to the Mahomedan community
the application of their own law to their domestic relations. The right of the wife to her
dower is a fundamental feature of the marriage contract: it has a pivotal place in the
scheme of the domestic relations affecting the mutual rights of the spouses at more
than one point:

       The marriage contract is easily dissoluble and the freedom of divorce and the
       rule of polygamy place a power in the hands of the husband which the law giver
       intended to restrain by rendering the rules as to payments of dower stringent
       upon the husband (per Mahmood J. in Abdul Kadir v. Salima,
6. The period which has elapsed since the Regulation of 1793 and the area to which its
language has been applied are too great to permit of much doubt remaining as to the
substantive law of dower among Mahomedans in British India. A review of the cases
upon dower decided under the Act of 1887 or its predecessor shows that while by
Mahomedan law marriage itself is viewed as a civil contract and "the agreement to
pay a certain amount of dower is a part of the contract of marriage" (Qasim Husain
Beg v. KanizSakina, the mere principles of the law of contract as embodied in the
Indian Contract Act are insufficient of themselves to account for the main features of
the law of dower. A summary of the results of many decisions was given by Lord
Parker of Waddington when delivering the judgment of the Board in HamiraBibi v.
ZubaidaBibi, on appeal from at p. 300 -an appeal from a Full Bench decision of the
High Court at Allahabad :

       Dower is an essential incident under the Mussulman law to the status of
       marriage; to such an extent this is so that when it is unspecified at the time the
       marriage is contracted the law declares that it must be adjudged on definite
       principles. Regarded as a consideration for the marriage, it is, in theory, payable
       before consummation; but the law allows its division into two parts, one of
       which is called "prompt," payable before the wife can be called upon to enter
       the conjugal domicile; the other "deferred, "payable on the dissolution of the
       contract by the death of either of the parties or by divorce. . . . But the dower
       ranks as a debt, and the wife is entitled, along with the other creditors, to have it
       satisfied on the death of the husband out of his estate. Her right however is no
       greater than that of any other unsecured creditor, except that if she lawfully,
       with the express or implied consent of the husband, or his other heirs, obtains
       possession of the whole or part of his estate, to satisfy her claim with the rents
       and issues accruing therefrom, she is entitled to retain such possession until it is
       satisfied. This is called the widow's lien for dower, and this is the only creditor's
       lien of the Mussalman law which has received recognition in the British Indian
       Courts and at this Board.
7. This passage illustrates how Mahomedan texts and the principles of Mahomedan
law have been applied to determine every facet of the law of dower among
Mahomedans-whether dower is payable apart from express agreement ; what
principles determine its amount if unspecified ; whether it can be agreed or added to
after marriage ; whether in whole or in part it is to be deemed to be "prompt" or
"deferred"; whether prompt dower is payable on demand or otherwise; whether non-
payment of prompt dower is a defence to a husband's suit for conjugal rights before
consummation ; or after consummation ; whether the promise of an excessive sum as
dower can be enforced ; whether the wife is a mere unsecured creditor for dower ;
whether a widow having obtained possession of her husband's estate in lieu of dower
has a right to retain possession until the debt is satisfied. On all these matters, as is
well known, the Courts will apply the Mahomedan law in Bengal, Bihar, Agra and
Madras, as well as in the other provinces. Nor is it reasonable to suppose that any
other law could be applied to determine whether dower can be remitted by the wife's
father ; or by the wife herself ; what is the effect upon the wife's right to dower of her
exercising her "option of puberty"; of her being divorced before consummation ; of her
husband dying before consummation. In Muhammad Siddiq v. Shahab-ud-din, the
parties were Sunnis and the High Court of Allahabad were not satisfied that the father
became liable by the Hanafi law as a surety for his son by reason of his arranging the
marriage. But their Lordships do not gather that the Division Bench in that case
doubted that the matter fell to be decided by the appropriate Mahomedan law, and in
their Lordships' opinion there is no room for doubt upon the point.

8. Their Lordships desire to advert particularly to the circumstances of the marriage
contract in the present case. Although the Indian Majority Act (IX of 1875) does not
affect the capacity of any person to act in the matter of marriage or dower (S. 2), the
husband in the present case was by his own personal law a minor at the time of his
marriage. He was married by his father in the exercise of a father's right so to do (the
right of jabr). What law, save the Mahomedan law, makes any contract to pay dower
binding upon the minor ? In WaghelaRajsanji v Masludin, Lord Hobhouse pointed out
that according to the general law of India, there is no rule which gives a guardian
power to bind his infant ward by a personal covenant. The father's power as natural
guardian to do so in respect of dower is the creature of the Mahomedan law of
marriage, and the learned Judges of the High Court invert the true position when they
proceed upon the view that there is no rule of general law which makes a guardian
liable as surety when he enters into a contract on behalf of his minor son. If the
general law is to control the matter the question will not arise. It is difficult to see why
this particular doctrine of the Mahomedan law should be required to conform to a
particular feature of the general law or should be interpreted in the light of it. It
remains therefore to consider the distinction drawn by the learned Judges in the
present case between "a substantive rule of the Shia law relating to marriage" and
what is variously called " a canon of interpretation", a "rule of construction" and a
"rule of evidence". Even where Mahomedan law applies to the subject matter, the
Courts in British India are governed by their own methods and procedure and do not
apply those rules of the Mahomedan law, which Mahmood J. in Jafri Begum v. Amir
Muhammad, , described as provisions which go only to the remedy, ad
litisordinationem, being matters purely of procedure as to array of parties, production
of evidence, res judicata, and review of judgment, etc.

9. Their Lordships cannot agree however that the passage from the Suraya upon which
the appellants rely expresses anything less than a substantive rule of law or that it can
be described as a canon of interpretation or construction or a rule of evidence. The
passage itself and its context are alike against this suggestion. To a doctrine which
enlarges the right of the wife or improves her security in respect of dower, an
important purpose must be attributed ; and in their Lordships' view it would only
mutilate the substantive law laid down by the Suraya if its rule as to the liability of the
husband's father were to be ignored. The learned Judges of the High Court interpret
the rule as follows :

According to the rule laid down in Suraya the father makes himself a surety for the
due payment of dower in case his minor son has no means of paying it. The
underlying principle is that the son's inability to pay must have been known to the
father and if in spite of such knowledge he agreed on behalf of his indigent son to pay
what was beyond the latter's means he should be deemed to have guaranteed the
payment of the stipulated dower.
10. Their Lordships are not called upon in the present case to say whether this
interpretation of the rule is in all respects correct. The matter was not fully argued at
the bar, and do materials to illuminate the meaning of the test have been laid before
the Board. Their Lordships are only prepared to hold that the appellants should
recover against the heirs of SibtiHasan on the footing that the decree of the trial Judge
against FarzandHasan is set aside. No point was taken in the Courts in India or at the
hearing of this appeal upon the maintenance deed which SibtiHasan executed on 15th
August 1914, or on the omission of the plaintiffs to implead the other heirs of
EjajFatma. In their Lordships' view, the proper form of decree is against each of the
heirs of SibtiHasan for that proportion of the appellants' joint claim which
corresponds to the share of each heir in the estate of SibtiHasan. The decree will only
be enforceable against each heir to the extent of assets come to his or her hands in
accordance with Section 52, Civil Procedure Code. As materials for ascertaining the
share of each defendant are not before their Lordships, the exact terms of the decree
must be framed by the High Court on receipt of His Majesty's order as to this appeal,
unless the terms are settled by agreement at an earlier stage. Their Lordships do not
consider that in this case the appellants have shown any right to an order for interest
for the period prior to decree; and they find it unnecessary to consider whether in
view of the Board's decision in HamiraBibi v. ZubaidaBibion appeal from interest
could in any circumstances be awarded in such a case as the present, where the wife
was never in possession of her husband's property in lieu of dower. The ultimate
decree however will carry interest at 6 per centum from the date of the Order in
Council as to this appeal.

11. Their Lordships' conclusion is that this appeal should be allowed, that the decrees
of the Courts in India should be set aside, and that in lieu thereof, there should be a
decree in favour of the appellants against each defendant, payable out of the assets of
SibtiHasan, come to the hands of such defendant for such fraction of Rs. 8333-5-4 as
corresponds to the share of such defendant in the estate of SibtiHasan. The
defendants must pay the appellants' costs throughout. Interest on the total sum
decreed will run from the date of the Order in Council at 6 per centum per annum.
Their Lordships will humbly advise His Majesty accordingly.
Appeal allowed.
Cases Referred.
, (1841) 2 MIA 141=2 Suther App 5=1 Sar 217 (PC) at page 447
, (1867) 11 MIA 551=8 WR 3=2 Suther 59=2 Sar 259 (PC)
(1886) 8 All 149=1886 AWN 53 (FB)
(1886) 8 All 149=1886 AWN 53 (FB).at p. 158).
(1932) 19 AIR All 649=139 IC 371=54 All 806= 1932 ALJ 781 at p. 809)
(1916) 3 AIR 1916 PC 46=36 IC 87=43 IA 294=38 All 581 (PC)
(1910) 33 All 182=7 IC 497=7 ALJ 1025 (FB)
(1927) 14 AIR All 364=100 IC 636=49 All 557= 25 ALJ 466
(1885) 7 All 822=1885 AWN 248 (FB) at p. 841
, (1916) 3 AIR 1916 PC 46=36 IC 87=43 IA 294=38 All 581 (PC)
(1887) 11 Bom 551=14 IA 89=5 Sar 16 (PC) at p. 96,
(1910) 33 All 182=7 IC 497=7 ALJ 1025 (FB)