JANUDUL HAQUE Vs. ZUBAIR HAIDER

JUDGEMENT

(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.