KAPORE CHAND Vs. KIDAR NISSA BEGUM

JUDGEMENT

(1.) This appeal arises out of execution proceedings. The appellant, Kapurchand, had a money decree amongst others, against one Mir Hamid Ali Khan, husband of the respondent Mst. Kanderunnissa. In execution of the decree the house in dispute belonging to the deceased judgment-debtor was attached. In the attachment the widow of the deceased raised an objection on the ground that she was in possession of it in lieu of her outstanding dower and could not be dispossessed till her claim was satisfied. The objection was allowed by the executing court and it was ordered that the house be sold subject to the respondent's claim, the decree-holder being entitled to the surplus, if any, out of the sale proceeds. There was not much possibility of the house fetching more in the execution sale than the amount due on account of dower. The court took the view that the widow's claim for dower had priority over the debts due to other unsecured creditors and her position was analogous to that of a secured creditor. The decree-holder made an application in revision to the High Court but without any success. He then preferred an appeal to the Judicial Committee of the State and it is now before us under Art. 374(4) of the Constitution.

(2.) The sole point for determination in the appeal is whether a widow in possession of her husband's estate in lieu of her claim for dower with the consent of the other heirs or otherwise is entitled to priority as against his other unsecured creditors. It is conceded that the husband died leaving the house in dispute and leaving outstanding a number of debts including the one due to the decree-holder. The house was not charged or mortgaged by him either in favour of his wife or in favour of any of the creditors. If the husband had created any charge in favour of his wife in lieu of her claim for dower then it cannot be doubted that she would have priority over the unsecured creditors. No specific Quranic text or any other original authority on Muslim Law has been cited in support of the contention that a widow's claim for dower stands on a higher footing than the claim of any creditor in respect of an unsecured debt. Reference was made to a text in Sur-ai-Nissa which enjoins a husband to pay the claim of his wife and it also says that widows and minors should be given favourable treatment. This text does not give an absolute protection to the claim of the widow as against other claims. On the other hand, a Muslim is enjoined to observe his engagements and to keep his contracts faithfully and to discharge his liabilities in an honest manner. No distinction is made between an injunction relating to the payment of dower on the one hand and the payment of the other debts on the other.

(3.) A careful examination of the various authorities on the subject shows that the proposition of law on this subject has been correctly enunciated in Tyabji's Muhammadan Law (1940 Edn.) in these terms: (1) A widow by her lien does not have any priority over other creditors; (2) Mehr as a debt has priority over other heirs,' claim to have the estate distributed among themselves. These two considerations are not affected by the fact of her being in or out of possession of the estate. It seems clear that unless the husband by his own act has placed the widow in a better position than his other creditors, her claim for dower is in the nature of an unsecured debt and she has no priority of any kind against the other unsecured creditors of her husband. The Quranic text in Surae-Nissa Ruku 4 enjoins the payment of dower in preference to bequests and inheritance but it is silent on the question of priority of dower debt in relation to other creditors. In Mubsoot Sarkhasi, Vol. 29, Kitabulfaiz, Page 137, it is pointed out that payment of debts has priority over bequests and wills. In the administration of the estate of a deceased Muslim the rule laid down by early text writers and Fatwas, such as Fatwa-e-Alamgiri is that in the first instance the funeral expenses of the deceased should be paid out of the estate and that having been done the estate should be divided between the legatees and the heir after payment of the debts due from him. No priority has been indicated in respect of a dower debt of a widow over other unsecured creditors even if she has taken possession of her husband's estate after his death.