JUDGMENT
1. This is a defendant's appeal in a suit for recovery of dower debt of one Mt. Shikoh Ara Begam alias Sajjan Begam, who was the wife of Malik Iftikhar Wali Khan, the appellant.
2. Mt. Shikoh Ara Begam died on 6th November 1922, and the plaintiff in her own right and as purchaser of the share of her husband of the amount due for dower from defendant 1, has instituted this suit for recovery of a sum of Rs. 62,687-8-0. It is admitted by the defendant that the dower debt was fixed at 1,25,000 and 25 sovereigns.
3. The defence put forward by the appellant was that the plaintiff and her husband caused the marriage of the defendant to be performed by practising fraud, that the fraud was that Shikoh Ara Begam was suffering from phthysis and unable to move about on account of illness. The marriage admittedly took place on 26th August 1921. The 'rukhsat' ceremony took place on 26th March 1921. The case of the defendant is, as set out in his written statement para. 11, that when Shikoh Ara Begam was sent to the defendant's house in 1922 it became apparent to the defendant that Shikoh Ara Begam was suffering from phthysis and unable to move about, that the defendant did not, after he came to know of the fraud, either directly, or indirectly, ratify the marriage, and that there was no consummation of the marriage, nor was there any possibility of the consummation of the marriage on account of the illness of Shikoh Ara Begam. The defendant further pleaded that in spite of the fact that there was no relation of husband and wife between the defendant and Shikoh Ara Begam, the latter, while she was ill and had no hope of her recovery, remitted the amount of the dower, although the dower would never have become payable. The learned Subordinate Judge framed various issues, but the main issues with which we are concerned in the appeal are issues 1 and 6. Issue 2 relates to the remission of the dower by Shikoh Ara Begam. The learned Subordinate Judge has recorded his finding in favour of the plaintiff and against the defendant, and as regards issue 2 the matter is so clear that it is unnecessary to go into it, nor has the plea taken in the memorandum of appeal about this issue been seriously pressed before us. We therefore find that Shikoh Ara Begam did not remit her dower as pleaded by the defendant.
4. The case on behalf of the plaintiff was that Shikoh Ara Begam was a strong and healthy girl but that when she returned too her parents' place, Rampur, on or about 1st November 1922, she was suffering from "pain in the sides and fever" and she died on account of it. The case for the defendant is that Shikoh Ara Begam was suffering from phthysis and died of it, and upon the evidence of Dr. Kacker there can be no doubt whatever that the lady died of phthysis on the date it is said she died. Dr. Kacker's evidence is conclusive on the point as he examined the lady on or about 2nd June 1922 when he found tuberculosis germs in the sputum of "Sajjan" Begam.
5. The real question for determination in this case is whether the marriage of Iftikhar Wali Khan, the defendant, was brought about by the alleged fraud practised on him by the plaintiff and her husband, namely that Shikoh Ara Begam was suffering from phthysis at the time of the marriage, and that this fact was known to the parents and concealed from the defendant-appellant. It has to be remarked that in this case even on the most trivial point on which there ought to be no controversy, we have got one version given by the plaintiff and quite a diametrically opposite version given by the defendant, and we have no doubt that neither party has spoken the whole truth about any of the matters in controversy, but at any rate, the burden of proving that the marriage was brought about by fraud as alleged by the defendant was on the defendant appellant. According to the Mahomedan law applicable to a Hanafi Sunni, as the defendant admittedly is, unless the marriage is proved to be irregular, dower is payable upon the death of the wife, even if there had been no consummation of the marriage. The evidence called on behalf of the plaintiff is that there was no consummation of the marriage, but for the purpose of this appeal it is unnecessary to consider the point. The evidence of Dr. Kacker, which is to be found at p. 114, mikes it clear that the illness from which Shikoh Ara Begam was suffering was tuberculosis; but we find that neither party has asked Dr. Kacker definitely from what time, or how long according to his estimate the lady had been suffering from tuberculosis. Dr. Kacker states:
My recollection is Iftikhar Wali Khan's wife was said to have been suffering from short time.
6. What was the short time neither party tried to clear. But Dr. Kacker goes on to say:
The duration of the disease varies from few weeks to quite a number of years. So far as I remember when Iftikhar Wall's wife was taken there, her relations were not certain about the diagnosis but they suspected consumption and so she was taken to Bhawali.
7. The question naturally arises as to who took Shikoh Ara Begam to Bhawali. The plaintiff's case is that the defendant Iftikhar Wali Khan took her up to Bhawali. Iftikhar Wali Khan's case is that his wife was taken to Bhawali by her parents. It cannot be denied by Iftikhar Wali Khan that it was he who hired the house in which his wife lived at Bhawali. The landlord has been examined in this case, Shaukatullah Khan, and he has produced his rent register in which there is an entry in the handwriting of the defendant that the appellant took the house on a monthly rent of Rs. 200. This endorsement is admitted by the defendant to be in his handwriting. The statement on oath of Shaukatullah Khan is that Iftikhar Wali Khan and his wife lived in his house from early June to 26th August 1922. The case for the defendant is that Shikoh Ara Begam remained at Bhawali up to the end of October when she was removed by her parents from Bhawali to Rampur, staying the night at Bareilly. There is nothing to show that the statement of Shaukatullah Khan about the date of the return was incorrect as the defendant's memory fails about payment of any rent after the end of August. We have further the statement of Dr. Kacker that Iftikhar Wali Khan was with the patient at Bhawali and that Jamil Khan the father of Shikoh Ara went to Bhawali on a short visit. It is impossible to believe the statement of the defendant that it was the parents of the girl who took her up to Bhawali. Whenever any point arises where the defendant may have to give an answer against anything that he was said in the written statement we find that the defendant gives the typical answer of a liar: "I do not remember." We therefore have no hesitation in accepting the plaintiff's case that Iftikhar Wali Khan took Shikoh Ara Bagam to Bhawali for treatment and we have no doubt that the relation who gave the information to Dr. Kacker that they suspected Shikoh Ara Bagam having consumption must have been Iftikhar Wali Khan and not the parents of Shikoh Ara Bagam. If on or about the time when Dr. Kacker examined Shikoh Ara Bagam, which was several months after the date of the rukhsat that Shikoh Ara Bagam was suspected of suffering from consumption we cannot in the absence of definite evidence of some qualified medical practitioner come to the conclusion that on the date when this marriage took place namely 21st August 1921 Shikoh Ara Begam was suffering from consumption, or was in such a state of health which would naturally lead the parents to conclude that sha was suffering from consumption.
8. It is no doubt true that there was a dispute between the party of the bridegroom and the bride at the time of the rukhsat and the versions as to what the dispute, was, as given by each party are diametrically opposed to one another. It appears to us on a consideration of the whole evidence that at the time of the rukhsat Shikoh Ara Bagam was temporarily indisposed, but it is impossible to conclude from that Shikoh Ara Begam was at that time suffering from consumption and that everybody about the place knew that she was. The witness Mt. Shaukat Ara Begam who supports the defendant's statement as to illness admits in her cross-examination that nobody enquired what was the nature of the illness of the bride. The evidence of her husband Abdul Hamid Khan is clear and it is that the defendant had probably informed Abdul Hamid Khan that the bride was temporarily ill. The doctor who is alleged to have examined Shikoh Ara Begam the morning after her arrival at Bareilly is Mukhtar Ahmad. He is unable to state what was the nature of the illness of Shikoh Ara Begam. He says that she had some sort of fever and she was under his treatment for two days at the most. This evidence cannot and does not help the defendant. The only evidence as to the state of the health of Shikoh Ara Begam before the marriage is said to be that of Taffazzul Husain at p 21. On a close examination of this evidence it is apparent that if he did see the lady it was either in the month of April or May 1922. He says:
I might have treated her for one and a quarter month or more before she went to Bhawali.
9. This evidence cannot help us to decide whether the bride on the date of the marriage was suffering from consumption. We notice that one Dr. N.K. Dar and a lady Mrs. P. Isaac, said to be a lady doctor, had been summoned to give evidence on the date when Taffazzul Husain was examined but they were not examined. Nor did the defendant examine Dr. Mukand Ram and Mr. Abdul Hakim, or Hakim Ilyas who, it was suggested in the cross-examination of the plaintiff, attended to the bride about the time or before her marriage. We therefore are not able to come to the conclusion upon this evidence that at the time of the marriage Shikoh Ara Begam was suffering from consumption, or that any fraud was practised on the defendant to bring about the marriage. Under these circumstances we are of opinion that there is no force in this appeal and we dismiss it with costs.