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Present: Grenier J.
NATCHIA v. PITCHE.
75—C. R. Puttalam, 5,894.
Muhammadan law—Maggar—Wife may sue, for it though not a party tothe kaduttam deed.
Under the Muhammadan law, as soon as the marriage is con-summated the right accrues to the wife to demand the maggarfrom the husband. It is not necessary that she should be a partyto the kaduttam deed in order to entitle her to sue for the dower.
fJ'HE facts are set out in the judgment.
Sovv.ndranayagam, for the appellant.
Cur. adv. vult.
April 12, 1911. Grenier J.—
This is an action by a Muhammadan wife against her husbandfor her maggar. The amount of the maggar was Rs. 150, and it wasalleged in the plaint that on the occasion of the marriage betweenthe plaintiff and the defendant the defendant promised to pay theplaintiff this sum by way of maggar. The amount of the maggarwas erroneously stated in the plaint to be Rs. 200, but it is nowconceded that it was not Rs. 200 but Rs. 150. The defendant in hisanswer admitted the marriage, corrected the averment that themaggar was Rs. 200 by saying that it was only Rs. 150, and allegedthat the agreement to pay maggar depended on the amount ofkaicooly given, and that plaintiff’s father had failed to transfercertain property, namely, 12 coconut trees of the value of Rs. 20.The maggar, according to defendant, would be only Rs. 110. The
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defendant also alleged that the plaintiff has in her possession a Aprili2,l9llgold string of the value of Rs. 30 given as part of the kaicooly, and Grenier J.he claimed that the plaintiff should return the gold string to the —7defendant, which she refuses and neglects to do. The defendant ^ ptvX”further averred that the plaintiff was not entitled to the maggar asshe had left the defendant, and that according to Muhammadanlaw and custom the defendant was entitled to Rs. 75 as compen-sation, or chattdy maggar, from the plaintiff. There was a replicationfiled by the plaintiff, in which she submitted as a matter of law thatit was not competent to the defendant to claim for her kaicooly,or the gold string or necklace which was given to her on the occasionof the marriage.
Another point of law taken in the replication was that the defend-ant cannot claim any chandy maggar, inasmuch as plaintiff neverrefused to live with him. She expressed her willingness to livewith the defendant on condition he paid her the maggar, which shecontended was an absolute gift payable on demand. At the trialcertain issues were agreed to in the following terms :—
Is the defendant entitled to plead non-payment of kaicooly
as a defence for non-payment of maggar ?
Is the plaintiff in possession of a necklace worth Rs. 30,
the property of defendant, as kaicooly ?
Has plaintiff forfeited her title to maggar by her conduct,
and is defendant entitled to Rs. 75 as compensation ?
Now, as I have understood the term maggar, it is the dower thata husband gives to his wife as the price of her virginity or possessionof her person, and as soon as the marriage is consummated the rightaccrues to the wife to demand it from him. It is not necessary thatshe should be a party to the kaduttam deed in order to entitle her• to sue for the dower. Maggar and kaicooly are two different things,and, as I have understood the law on the subject, the wife nevergives kaicooly to her husband, but it is the parents who do so.
Both ntaggar and kaicooly form part of the wife’s marriage settle-ment. Even if the husband has not paid the wife her maggarduring his life time, she is entitled to claim it from his estate, andthe claim would I think be a first charge on it (Vand. Rep., 1869-1871, pp. 196-203). The Commissioner thought that the case couldnot be decided without evidence as to the custom of the Moors—on what precise point it is difficult to say—but there were twogentlemen called : Mr. Senathirajah, Crown Proctor of Puttalam,and Mohammadu Cassim Marikar, who is the head Moorman atPuttalam ; and according to the former’s evidence the necklace givenas kaicooly to the husband, and afterwards given by him as thalito his wife, became the wife’s separate property. This witness alsostated that he had never heard a claim of chandy maggar advancedin the District of Puttalam during the eighteen years he has been
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resident in it. The other witness slated that chandy maggar isin fordte among Muhammadans, that it is now customary toenforce it, and that in order to make chandy maggar payable theparties must be divorced, which is not the case here. In answerto the Commissioner, this witness stated that if a man got anecklace as kaicooly, and gave it to his wife as thali, the wifecan claim it as her property, but if it was given as a present it revertsto her husband. So that if we have to regard the. evidence ofthese two witnesses who were called to give expert evidence, thenit is perfectly dear that the defendant has no claim whateveragainst the plaintiff, either in respect of the kaicooly or in respectof the thali that the husband gave to the plaintiff. The Com-missioner appears to have disregarded all the evidence, and to havebased his judgment upon what he calls a general principle of thelaw of universal application, that a contract cannot confer a rightor liberty or duty on a third party. He held that the plaintiff hasno ground of action- against the defendant, but that her parents,the signatories to the kaduttam, were the proper people to sue.
1 think he was wrong there. As l have said before, the wife isentitled to her maggar, and whether she signs the kaduttam or notshe can sue her husband for it. and that is her present action againsthim. It was held in D. C. Galle, 54,117 (9 S. C. C., /;. 22), thatmaggar takes effect from the marriage, and the wife may make animmediate demand for it, and on refusal sue the husband for it.In my experience I have never known the parents of the bride suefor maggar in their own right, and the reason is obvious, thatsomething that is due to the wife incidental to her entering intoclose marriage relations with her husband cannot be due to anythird party. I think this judgment is clearly wrong, and as I havebefore me all the materials necessary to decide the case, it willserve no good purpose to send it back for the finding of the Com-missioner on the evidence he has recorded. I would therefore setaside the decree appealed from and order judgment to be enteredfor plaintiff for Rs. 150 with interest as claimed in the plaint,dismissing at the same time the defendant’s claim for compensationin respect of the chandy maggar and the return of the necklacereferred to in the answer. The appellant will have her costs ofthis appeal and in the Court below.
NATCHIA v. PITCHE