Kaneez Kasim v. Hadi Husain Khan — 1977 DIGILAW 271 (ALL)

JUDGMENT T.S. Misra, J. - This is an appeal by the plaintiff which arises out of a suit for recovery of Rs. 14000.00 as dower debt. 2. The facts which are not in dispute are that the plaintiff Kaneez Qasim was married to Hadi Husain Khan according to Shia Law on 20th Feb, 1965, at Lucknow. After a few months of the marriage, the relations between the parties got strained and the plaintiff was ultimately divorced on 22nd Feb. 1967. But before that divorce took place, the plaintiff filed the suit which has given rise to this appeal for recovery of Rs. 14000.00 being the prompt dower alleging that the defendant had agreed at the time of the marriage to pay a sum of Rs. 14000.00 as dower to the plaintiff. She claimed payment of this amount by a notice dated 17th Nov, 1966, to which a reply was sent by the defendant on 29th Nov. 1966, denying his liability to pay the amount claimed and offering to pay Rs. 500.00. The plaintiff, therefore, filed the suit for the recovery of the said amount. The suit was contested by the defendant alleging inter alia the circumstances in which a sum of Rs. 14000.00 came to be recorded in the Nikahnama Ex. 1 and how he suggested to Rs. 500.00 as dower which, according to him, was accepted by the plaintiff. He also pleaded that the amount of Rs. 14000.00, mentioned in the Nikahnama, was a fictitious figure not commensurate with the status of the plaintiff and her parents as also the means of the defendant. He, therefore, asserted that under the provisions of the Oudh Laws Act only a reasonable amount could be decreed to the plaintiff by way of dower. 3. The trial court on these pleadings framed issues Nos. 1 and 3 in the following terms: 1. Whether the amount of Rs. 14000.00 as prompt dower was only settled Farzi and in fact there was a settlement for Rs. 500.00 as deferred dower as alleged ? 2. Whether the claim of Rs. 14000.00 was hit by the provisions of Oudh Laws Act? 4. Both the parties adduced evidence which was duly considered by the trial court. On an appreciation of the evidence the trial court found on issue No. 1 that the amount of Rs. 500.00 as deferred dower as alleged ? 2. Whether the claim of Rs. 14000.00 was hit by the provisions of Oudh Laws Act? 4. Both the parties adduced evidence which was duly considered by the trial court. On an appreciation of the evidence the trial court found on issue No. 1 that the amount of Rs. 14000.00 as prompt dower was settled only fictitiously and in fact there was a settlement for `Rs. 500.00 as alleged. As regards issue No. 3 aforesaid it was held that keeping in view the plaintiff's status and the means of the defendant, an amount of deferred dower of Rs. 500.00 only, as agreed, was a reasonable and could, therefore, be awarded to the plaintiff. The trial court accordingly decreed the suit for Rs. 500.00 only. 5. Against that decision an appeal was preferred by the plaintiff in the court of the District Judge, Lucknow. It was heard and decided by the Additional District Judge, Lucknow. The appellate court below on appraisal of the evidence concurred with the trial court in holding that no dower was fixed directly between the parties who were both major and that the amount of Rs. 14000.00 was entered fictitiously to elevate the status of the bride's family and the actual figure was Rs. 500.00 which was finally ratified by the wife before the consumption of marriage. Before the appellate court below it was also urged that the terms of the contract contained in Nikahnama Ext. 1 could not be proved by oral evidence. This contention was repelled by the appellate court below and concurring with the trial court that a sum of Rs. 500.00 is the reasonable amount of dower under the Oudh Laws Act, dismissed the appeal. Aggrieved by the decision, the plaintiff has come up to this court in second appeal. 6. At the outset the learned counsel for the appellant submitted that the appellant had filed the original reply of the defendant dated 29th November 1966 which he had given in reply to the notice of the plaintiff but the appellate court below had erred in not accepting that document in evidence. The appellant, therefore, sought for the admission of that document in evidence and prayed that the same may be considered along with other evidence to come to a proper conclusion in the case. 7. The appellant, therefore, sought for the admission of that document in evidence and prayed that the same may be considered along with other evidence to come to a proper conclusion in the case. 7. I have heard the learned counsel for the parties with regard to the admission of this additional evidence. The learned counsel for the respondent has no objection to the admission of the said document in evidence and has also made endorsement admitting the genuineness of that document. It is, as pointed out earlier, a reply of the defendant to the plaintiff's notice. The same document, in the circumstances, is admitted as additional evidence under Order 41 Rule 9 7 of the Code of Civil Procedure. It was then urged on behalf of the appellant that the plaintiff had specifically averred in the plaint that the defendant had married the plaintiff agreeing to pay a sum of Rs. 14000.00 as dower. Prior to the institution of the suit the plaintiff had given a notice stating this fact and had claimed the amount of Rs. 14000.00 from the defendant, however, it was submitted, did not specifically state, in reply to the notice, that the amount mentioned in the Nikahnama was never agreed to be paid and that part of the contract was never agreed to be acted upon. Further it was not stated, according to the plaintiff, in the said notice that there was a proper agreement between the plaintiff and the defendant for payment of a sum of Rs. 500.00 as dower. Basing his contention on the contents of the said reply of the defendant dated 29th Nov. 1966, it was urged on behalf of the plaintiff that the case set up by the defendant in the written statement being inconsistent and not in con formity with the stand taken in the reply of the notice should not be accepted. In the written statement it was pleaded by the defendant, discussing about the settlement of dower, that a Farzi dower was fixed on the assurance of the parents of the plaintiff that it would give a good show on the occasion of marriage and that the dower was to be settled later by the parties at their first meeting. In the written statement it was pleaded by the defendant, discussing about the settlement of dower, that a Farzi dower was fixed on the assurance of the parents of the plaintiff that it would give a good show on the occasion of marriage and that the dower was to be settled later by the parties at their first meeting. Further it is said that it was this assurance about that Farzi nature of the dower which prompted the defendant to express readiness at Nikah and consequently the plaintiff is estopped from claiming more than Rs. 500.00 because of her own conduct and that of her father with which she was bound. He had also pleaded in this connection that in fact Rs. 500.00 were suggested at the time of Nikah and duly affirmed by the parents of the plaintiff with a condition that a farzi Mehre Maloom be fixed at the time of Nikah, it being a first marriage in the family and a low dower might put them to disgrace and a higher Farzi dower might be a grace and that the plaintiff and defendant would themselves come to a settlement at their meeting. The plaintiff accepted the said amount of Rs. 500.00 as a deferred dower which the defendant does still maintain. Further, he also stated that at all events, the alleged dower is of Rs. 14000.00 unconscionable and beyond the status of parties and specially that of the defendant who was then earning Rupees 131.00 per month as his basic pay. He was only a temporary Lower Division Clerk (Scale Rupees 110-3-131-4-155-5-175-EB-5-180) with a grade up to Rupees 180.00 on retirement. He had also stated that it was not possible to contract such a high dower which is not permissible in law, being against Oudh Laws Act which prohibits excessive dowers and only allows a reasonable one with reference to the means of the husband and status of the wife. 8. I have read the reply of the defendant to the notice of the plaintiff along with the written statement. A conjoint reading of the said reply and the written statement makes it quite manifest that the defendant had all along asserted that the amount of Rs. 14000.00 mentioned in the Nikahnama Ext. 1 was really not agreed to be paid by him as dower; that was merely a fictitious figure mentioned in that document. A conjoint reading of the said reply and the written statement makes it quite manifest that the defendant had all along asserted that the amount of Rs. 14000.00 mentioned in the Nikahnama Ext. 1 was really not agreed to be paid by him as dower; that was merely a fictitious figure mentioned in that document. He, in reply to the notice of the plaintiff said: "As regards the amount of the dower claimed, the same was fixed under circumstances well-known to your client and her father which need no elucidation." He further says: "I may, however, point out to you that the amount claimed by your client is not in keeping with the assurances given to me at the time of the marriage nor is it in conformity with the status of my wife or my means. I had suggested Rs. 500.00 (Rupees five hundred) as the dower and I still maintain it. Looking to all the factors Rs. 500.00 is a quite fair and reasonable amount which your client may claim after the dissolution of the marriage as already mentioned above." In the said reply the defendant had merely referred to the circumstances in which the amount of Rs. 14000.00 was got mentioned in the Nikahnama, Ext. 1. True it is that he did not give full parti culars of those circumstances in his aforesaid reply but it was not necessary to do so inasmuch as the notice which was being replied to was given by the wife to the husband claiming certain amount by way of dower where the husband chose merely to draw the attention of the wife to the circumstances in which the amount was got mentioned in the Nikahnama and which circumstances were said to be well known to the wife and her father. He, therefore, thought it advisable simply to refer to the circumstances by saying that they need no elucidation. Notice is not a pleading and, therefore, need not be construed in the manner a pleading is required to be construed. No paragraph of the reply, in the circumstances of the case, should be read in isolation. Reading the reply as a whole,- it seems quite obvious that the defendant was assertive of the fact that the amount mentioned in the Nikahnama was not the correct amount agreed to by him and that he had suggested to pay Rs. No paragraph of the reply, in the circumstances of the case, should be read in isolation. Reading the reply as a whole,- it seems quite obvious that the defendant was assertive of the fact that the amount mentioned in the Nikahnama was not the correct amount agreed to by him and that he had suggested to pay Rs. 500.00 which figure he still maintains and for which he expressed his readiness and willingness to pay. It cannot, therefore, be said that the defendant at the first meeting did not come out with the case which he actually pleaded in the written statement. No doubt the written statement contains better particulars as it ought to. Both the courts below have con-currently held that the. defendant had not agreed to pay dower to the tune of Rs. 14000.00. and that the figure of Rs. 14000.00 mentioned in. the Nikah nama, Ext. 1, was fictitious. Further both the courts below have held that it was agreed the plaintiff and the defendant before the consumation of marriage that the defendant would pay a dower of Rs. .500.00 only. It seems that the defendant had been insisting on this figure even prior to betrothal and Nikahnama. He insisted even after the marriage. The defendant had adduced evidence in support of his contention. Both the courts below have, on a careful scrutiny of the evidence adduced, accepted the contention of the defendant The reply of the defendant, now admitted in evidence does not lead us to a different conclusion. I, therefore, find no reason to interfere with the concur rent findings of fact recorded by the courts below. 9. It was next urged that at any rate the agreement said to have been entered into between the plaintiff and the defendant for payment of Rs. 500.00 as dower was brought about under undue influence and was, therefore, hit by Section 16 of the Indian Contract Act. In support of his contention the learned counsel placed reliance on Subhas Chandra v. Ganga Prosad, ( 1967 (1) SCR 331 ) : ( AIR 1967 SC 878 ) where it was held that under Section 16 of the Contract Act the unconscionableness of the bargain is not the first thing to be considered. In support of his contention the learned counsel placed reliance on Subhas Chandra v. Ganga Prosad, ( 1967 (1) SCR 331 ) : ( AIR 1967 SC 878 ) where it was held that under Section 16 of the Contract Act the unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of the parties and secondly it has to be seen whether the person so benefited by the contract had used his position to obtain an unfair advantage over the other party. It was hold that sub-sec. (3) of Section 16 throws the burden of proving that a contract was not induced by undue influence on the person benefiting by it when two factors are found against him namely that he is in a position to dominate the will of another and the transaction appears on the face of it or on the evidence adduced to be unconscionable. In the light of this legal position it was urged on behalf of the Plaintiff that in the case in hand the defendant who was the husband of the plaintiff was in a position to dominate the will of the plaintiff at the time when the alleged agreement for payment of Rs. 500.00 as dower was made. The defendant had said that on the first night of their meeting, the defendant had, before the marriage was really consummated, said that he would pay Rs. 500.00 only as dower and that this figure was accepted by the plaintiff. It was urged that besides the fact that the husband is always in a position to dominate the will of the wife, the husband was in a better and stronger position to dominate the will of the wife when they were just to meet for the first time in their life as husband and wife. It would in my opinion be too wide a proposition to say that husband is always in a position to dominate the will of the wife for there may be occasions when the wife may be said to be in a position to dominate the will of the husband. It would in my opinion be too wide a proposition to say that husband is always in a position to dominate the will of the wife for there may be occasions when the wife may be said to be in a position to dominate the will of the husband. for example the husband may be invalid and the wife may be an earning member, the husband may be sufficiently advanced in age and the wife may be comparatively younger, the husband may be weak, weak in intellect and the wife may be extraordinarily brilliant. But it is also not possible to lay down that husband would not be in a position to dominate the will of the wife on the first day of their meeting. Hence we have to see further in this case whether the husband exercised undue influence in bringing about the contract of payment of Mehar of Rs. 500.00. For this the plaintiff had to lay a foundation in her pleadings. We shall, therefore, refer to the case set up by the plaintiff in her plaint and replication. A perusal of the plaint would show that not a word as stated about the exercise of undue influence by the defendant in bringing about the alleged contract of Rs. 500.00 though the defendant had in his reply pointed out that it was well known to the plaintiff and her father as to how dower was mentioned in the Nikahnama and he had also said that he had suggested to pay Rs, 500.00. Further he had stated that he was ready and willing to pay that amount. The plaintiff, however, did not refer to this aspect of the matter in the plaint. The defendant in his written statement elaborated his contention by giving particulars and asserted that the amount mentioned in the Nikahnama was fictitious and the real amount agreed to was Rs. 500.00 which according to the defendant had been settled between the plaintiff and the defendant before the consummation of the marriage. The plaintiff availed of the opportunity of filing replication in the case but nowhere did she choose to state that the alleged contract was brought about under undue influence. On the other hand, she denied to have entered into any such contract. The plaintiff availed of the opportunity of filing replication in the case but nowhere did she choose to state that the alleged contract was brought about under undue influence. On the other hand, she denied to have entered into any such contract. She could have pleaded, in the alternative, in her replication that the contract alleged to have been entered into between her and her husband before the consummation of marriage with regard to payment of Rs. 500.00 as dower, if found established, was brought about under undue influence and could have given particulars of the same. The replication is, however, significantly silent about this aspect of the matter. In Subhas Chandra Das Mushib's case (supra) the Supreme Court laid down in clear terms that before a court is called upon to examine whether undue influence was exercised or not it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. As pointed out earlier, these conditions incidentally remained unsatisfied in the instant case. The plea of undue influence is, therefore, unsustainable. 10. Lastly, it was urged that since the terms of contract were incorporated in the form of a document Nikahnama Ext. 1, no oral evidence could be adduced to vary any of the terms of the contract. In this connection the learned counsel referred me to Tyagraja v. Vedathanni ( AIR 1936 PC 70 ) and to the provisions of S. 92 of the Indian Evidence Act which says that when the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to S. 91, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to. or subtracting from, its terms. There is no quarrel with the proposition that if the terms of any contract are reduced to the form of a document and the document of dower to the tune of Rs. 14000 be allowed to be led to contradict, vary, adding to, or subtracting from any of the terms thereof it was therefore urged that as the Nikahnama Ext. There is no quarrel with the proposition that if the terms of any contract are reduced to the form of a document and the document of dower to the tune of Rs. 14000 be allowed to be led to contradict, vary, adding to, or subtracting from any of the terms thereof it was therefore urged that as the Nikahnama Ext. 1 evidenced the contract of payment of dower to the tune of Rs. 14000 the defendant was not entitled to lead evidence to contradict or vary the terms of the contract contained in Ext. 1. It is well settled that S. 92 of the Evidence Act only excludes oral evidence to vary the terms of a written contract. It has however, no reference to the question whether the parties had agreed to the terms set forth in the document. Similarly S. 91 of the said Act only excludes oral evidence as to the terms of the contract. But oral evidence is admissible to show that a document executed by a person was never intended to operate as an agreement and was brought into existence solely for the purpose of creating evidence about some other matter. Similarly Sections 91 and 92 of the aforesaid Act will not debar a party to show that there was no agreement between the parties and, therefore, there was no contract. A party can, therefore, produce oral evidence to make out that the terms of the agreement contained in a document were never intended to be given effect to (See Tyagaraja v. Vedathanni ( AIR 1936 PC 70 ) and Egged Co-operative Society v. Levi Geffen ( AIR 1947 PC 32 ). 11. In the present case the defendant's contention was that he had always insisted that he would not agree to pay dower in excess of Rs. 500 but the father of the plaintiff persuaded him that the amount of Rs. 14000 be mentioned in the Ikrarnama so that his family status may be enhanced. It was with this end in view that the amount of Rs. 14000 was got mentioned in the deed. Both the courts below have found as a fact that the amount mentioned in the Nikahnama was a fictitious one and that it was never intended to be acted upon and that the terms relating to dower contained in the said document were never intended to be acted upon. 14000 was got mentioned in the deed. Both the courts below have found as a fact that the amount mentioned in the Nikahnama was a fictitious one and that it was never intended to be acted upon and that the terms relating to dower contained in the said document were never intended to be acted upon. The oral evidence produced by the defendant to substantiate his version that the amount of Rs. 14000 mentioned in the document was never intended to be operative and binding was therefore, relevant and admissible in evidence. Neither S. 91 nor S. 92, Evidence Act hindered the defendant in establishing that fact. The plaintiff having failed to establish that the defendant had agreed to pay a sum of Rs, 14000.00 as dower, and the defendant having on the other hand succeeded in proving that there was in fact an agreement between him and the plaintiff for payment of a sum of Rs. 500 as dower, the claim of the plaintiff for a sum of Rs. 14000 was unsustainable. 12. Both the courts below have also held, and in my view correctly, that under the Oudh Laws Act, 1976 (Section 5) the Court is to award only such amount as dower as shall be reasonable with reference to the means of the husband and the status of the wife. The defendant had pleaded that at the time of his marriage he was earning Rs. 131 per month as basic pay. He was a temporary Lower Division Clerk in the grade of Rs. 110-3- 131-4-155-5-175-EB-5-180. He, therefore urged that it was not possible for him to enter into a contract for such high dower as Rs. 14000 and that it was beyond his means. Further, he pleaded that the status of the plaintiff at the time of marriage was also not such as to warrant entering into an agreement to pay such a high amount of dower as Rs. 14000. According to the defendant the status of the parents' family of the plaintiff at the time of her marriage was very low. Her father was a petty shop-keeper carrying on the business of repairing sun-glasses and earning about Rs. 2 to Rs. 3 per day. Similarly her grandfather was a leather dyer earning about Rs. 2 per day. In her replication the plaintiff alleged that the defendant earned more than Rs. Her father was a petty shop-keeper carrying on the business of repairing sun-glasses and earning about Rs. 2 to Rs. 3 per day. Similarly her grandfather was a leather dyer earning about Rs. 2 per day. In her replication the plaintiff alleged that the defendant earned more than Rs. 300 per month and that he had other property as well. With regard to her family status she admitted that Piarey Mirza earned Rs. 8 to Rs. 9 per day and Hasan Mirza was a merchant. In his deposition the defendant admitted that his salary including the allowances was Rs. 295 per month. On the date when this contract of dower was sought to be enforced the income of the defendant was thus Rs. 295 per month.. The allegation that the defendant owned some other property as well was very vague, No particulars of the alleged property of the defendant were given in the replication, nor in the oral evidence. Keeping in view the status of the wife and the means of the husband the courts below were justified in holding that under the provisions of S. 5 of Oudh Laws Act a sum of Rs. 500 was the reasonable amount of dower. 13. No other point was urged before me. 14. In the result, the appeal fails and is dismissed. The parties shall bear their own costs throughout.