Court.

ntxll.n, C.J. and ~.n·., J.

The defendant tben applied to the High Court, Ahartoum for reTi.ion
of. the degree9 and in tbe cour.e of tbe hearing set up a defence which

b. dge. not appear~o bave raiaea in the Court below, a defence tbat this
claim to tbe jewelry, witb otber outatanding mattera of diapute, had been
tbe .ubject .f a. "aulb^lt between tbe partiea aome few daya before the widow -
rai.ed her suit and that for tbia reaaon abe could Dot aucceed in ber
a~tion in tbe court below. There i. notbing in the Diatrict C.ur~ re.ord
to abow that tbe queation of tbe Itaulb" waa raised aa a matter of defence
by the preaent defendant, and the judge in a not. attached to the procee-
ding. expre •• ly atate. t.b4t it Y.a net rai.ed at any time during tbe

trial. It ia therefore a matter of aome aurpriae to find thia moat mate-
rial defence raiaed for the firat time in the courae of reTiaion procee-
dingap although the learned Judge of the High Court appeara to have acc,_
pied the pcaition witbout comment. He found that the ttaulhlt waa intended
to be a final aettlement of all outatanding diapu~ea betweeD the partiea.
(including the widow'. claim to tbe value of the jewelry), and .et aaide
the decree given in her favour in the Court below. The widow now comea

to thia court and .aka for the reatoration o~\the original decr.e.

'!'bit dadaion now turna on one point, and· one point :.lone. Did the
".ulhlt~ recorded in tbe Sharia Court, Khartolb, on Mai 26, 1940 include
thi= clai~ t~ the value of the jewelry in the m&ttera it a.ttled between
the partie.?

Bach party haa been heard at length on thia i.aue. It i. common
ground that in ao far a. two out.tanding mattera in diapute between tbe
partie. were- concerned, the Qadi referred them to the Civil Courta for
deeiaion. Theae were the widow'. preaent-claim, and a claim by the 80n

to a .um of aome LE.45 aUeged to have been in the deceaud's pone •• ion
at the t~me of hia death and taken by the widow who was then in his comp-
any. The defendant .ay. he took atep. to establi.h hi. claim. He aub-
mitted a plaint to the Court, but before further action waa taken withdrew
it witb a view to .ettlement of the diipute through the intervention of
fami 1.y fTi enda. . It was by reaon of thi. that the Itsulh above referred te
w~. reached~ and recorded in the Sharia Court. The widow had up to then
talt~n no effective .tep. to comply with the gadi'. instruction., but .ome
.ight day. after the It.ulb", commenced the •• proceeding. in the Di.trict
Co\f'ri_ ;J[h.artoum. She contenda that her claim to the value of the jewelry

fo~ed no part of the "sulh" rel.ted only to the distribution of movable
alld- i"o.-'ble property and her claims to .adak and alimony for the peri od

.f "i,da", purel~ Sharia matters and within the Sh ar-La Court's competence.

r. this wa. added at the son'a inBtance, the disputed claim t.o money said

~. h've be.n l.tt in her posseasion by the deceased at the time of his death.

But ,~h. lin.i.ta that her claim to the value of the jewelry wa. not embraced
by ihe "._ulh" and that neither party intended it .hould be ao included. It
wa. a civil matter, and distinct from the .haria matters enumerated above.

The plaintiff' •• g.nt tell. u. th.t no mention of the j.welry w •••• de in
the negotiation for the "aulh" and the defend.nt .t lea.t goe •• 0 far a.
to .dmit that th. plaintiff'. agent did not raise th ••• tt.r. Aft.r .nch
h •• itation h. a •• ert. b.fore u. th.t on hi. part h. con.ider.d the ~.ulh"
eli.po.ed of the ciaim~ a. it di.p ••• d .11 out.tanding. b.twe.1II thea, bu~
hi. a •• ertioD wa. made in • half hearted m.nner~ acd not •• de more conTi~

neing by hi •• ub.equent sugg.stion th.t in •• far .s he w •• conoerned no

~ention of the jewelry w •• nece.sary~ a. it belonged to his f.ther in .ny
~a.e. For my part I am convinced that the defend&nt~ who m.de • most
unfavour.ble impres.fon on me9 i. not telling the truth .nd I feel th.t
.lmo.t the whole conduct of the partie.~ which it i. now n.c •••• ry te
.xaminep goe. to .upport the plaintiff'. e~ntention.

The plaintiff put. forward the perfectly re •• onable submi •• ion th.t

she had .h.ri. m.tter. in di.pute9 and .1.0 a civil •• tter which sh.

h.d been told to take to the Civil Courts. An opportunity .ro •• to di.-

pe •• by ~sulh" of the sh.ri. p.Jrt I)f the di fferencea9 and .he did .Op n •••
;th.r ahe noll' the defend.nt h.ving .ny intention of di.p~.ing o.f the widell".
cLvil cl.im~ which .he did not r.linqui.h_p and which in f.ct w.s Dot de.lt

'"ith in the di .• eu •• ion. preceding the "aut h ", In this₉ the •• _wh.t
i!l.concluaive evidence oyttie witnene. to the .greement give. hel!' .uppert,
f~1!' one "Ji. tneup .tati ng that9 "! cer.inly under.tood th.t it, •• ttled .11
outstanding dispute. between .pplic.nt .nd Jr •• pondent"? add._p "I .ay
th~~~ was no mention of the j."elJrY at the time of the K._ulh"₉ and the
ae~~Dd~ .fter 8xpr •• aing a Tiew that the ".nlh" precluded Khadiga f~om
rai.i~g the pre.ent claim9 al.o state.p wapplieant and re.pondent were
di.puting in the .haria court •••••• before the Mahkama Sharia eaeh fiDally

.gJreed to drap theill[, re.,pect:i. Vtl claim".

1\<. ia a·it. Ieaat a reasonabl. ini'ell'ence that there i. a gced deal in

the pl.in~iff~. contention that the IlsnIh'1 d.alt in eo fall" aa .he was
~Gnc.rned with the aharia part of ~he dispute. Noll' can it b. overloo~ed
that the ·~.ulh~' is not lin general t..lI'III.9 but refer •• ped f:li.cally to matt.r.
which it dispo.e. of. Th~ •• include the obviously .haria claim.9 and in
addition the claim of the defendant that certain moni •• of the •• tat. were
in the hand. of the widow. There i. no mentioD what.oever directly or in-
directly of ~he claim for the value of the jewelry. Thi. fact9 coupl.d
with the plaintiff'. a"ertioD and the def.ndant'. eva.ive denial that thi.

    part of the widt'w'll"claiDl was excluded from the ".ulh^I0₉  

previoualy in.tructed by the Qadi. It i. poaaibh tnato tlie, in.ti tutiell

ef the .uit "aa • piece of ".harp practice" on hi. part, and an att •• pt",te

take advantage of an emi •• ion in the written t.na. of' ".ulh" but there ••••
nothing tJ .upport this .uppo.ition.

And doe. not the early conduct of the defend.nt, when re.i.ting the
plaintiff'. claim in the civil court, give .uppert to the widew'.

pre.eDt
contentien? He made n. mention (except vaguely in • written application
to the court, to which he failed effectively t. draw attention) .f the
t'.ulh" nor rai.ed it a. a matter of defence, when it ya.;' if hi. pre.ent
.ubmi •• ion ha. any merit, a complete a~.wer to the plaintiff'. claim. He
fought the ca •• on an i •• ue 011 whi ch he fai led, and it was only when he

c •• e t. the High Court that he brought forward hi. pre.ent .ubmi •• ion a.
te the ".ulh". Had the faet. b.en a. he now .tate., I am .ur~ he would
have rai.ed the matter at fir.t opportunity. The truth i. that he 'knew
fully well that the ".ulh" did not di.po.e of this pre •• nt claim, nor did
eith.r party intend that it .hould. The ".ulh" dee. ne more thall te
di.po.e ef the .atter. it .pecifically mentien., and I am in agreement
with the learned Judge of the High Court when he .tate. that the defendant

,.heuld have .een, if .he intended to re.erve the claim to the jewelry? that
this intentien wa. mentioned io the agreement.

It i. ~rue that the widow .eem. te have mad. ne mention' of her claim
when the local Sheikh made ab inv.ntory of the •• tat. before it •• ubmi~-
.ien te the Sharia Court. Her ag.nt now a'ttribut •• this ••• i •• i8n te her
di.tre •• at the time, although on. may think it perhap. more likely that
.he wa.",content not t. pre •• the claim, provided no claim was made for the
money in decea.ed'. p ••• e •• ion when he died, and whi~h .ha teok over, and
previded al.o that her ~laim. for .adak and alimony were met. What the
former .UID amounted t. ha. not been d.termined. Certainly the defendant'.
claim i. highly .p~culativ~ and ba.ed on nothing more r.eliabl. than a
e.empari .en wi th the expendi tur. of other per.on. making the pi Igrimage

. 'at the .alle time. '!'he.WI! An the decea.ed I. hand. when h •• et out i.

not reliably know~, a~d the account .ubmitted by the defendant allow.

nothing for the expenme. att.nding the decea •• dⁱ• funeral and previ.ion
for the widow during the remainder of her .tay in the Hidjaz and fer her
maintenance expen.e. in returning to this country. The plaintiff'. agent
•••• rt. that but a f.w pound. remained at the time of death, and in

any ·ca.e it .eem. improbahle that there wa. anything like the .um .lleged

by re.pondent. I mention thia, not by way of determinatioll of the plaintiff'.
claim, but •• a po •• ible m.~n. of a.certaining whether or not the claim fer

jewelry i. likely to have b •• n let off, a •• uggested by the dei'endant, again.t

the claim to th. money left by decea.ed, and to ••• wheth.r the agr •••• nt,

wi thtnit the j.welry 'ctaim, wa. a reasonable on.. In oth.r word., wa. it.

r.a.o •• able to •• t ofr ill the ".'nlh" th •• um claimed a. tak.n by h.r in the
Hid,az agaiuat her claim for .limony and .adak, • cour •• which the term.

er the ".ulh" .ugg •• t .• was fell owed. I think it w •• , and con.id.r the .e1.

.ff wa., and r.a.onably •• ~ again~t the .adak and alimony claim and not
~laiD.t the claim for value of th~ j.w.lry, which was intend.d to be dis-
pe.ed, ef el.ewh.re.

baD., J.3I CODcur.

Appeal alloweel