ALI BAKHSH Vs. ALAH DAD KHAN

JUDGEMENT

(1.) The sole question for decision in this appeal is whether the heirs of a Muhammadan widow, who has lawfully obtained possession of her husband's estate in lieu of her dower, are entitled to continue holding that estate after her death, until the dower debt has been discharged.

(2.) The present plaintiffs-appellants are the heirs of one Musammat Zahuran. This lady and Musammat Saliman were the wives of one Izzat Khan or Izzat IJllah, who died on 29 August 1905, leaving as his heirs the two widows (who as heirs were entitled to a 1/8 share each) and one Alladad Khan (who was entitled to 6/ 8ths). On his death the widows each took possession of a half share. Musammat Zahuran died in December 1906 and the present plaintiffs as her heirs applied for mutation of names. They were opposed by Alladad Khan but defeated him in the Revenue Court. He then transferred his rights as heir to defendants Nos. 2 to 4 and so the plaintiffs have now sued for a declaration of their right to retain possession of the 3/8ths share in the estate of Izzat Khan of which the widow has taken possession (over and above the l/8t.h share which she took as heir) until the satisfaction of the dower debt due to her.

(3.) Amongst other defences, it was pleaded that the widow had not obtained possession lawfully and that the dower debt was only Rs. 200 and not Rs. 2,000 but the lower Courts have not gone into the merits of the case. On the strength of the ruling in Hadi Ali V/s. Akbar Ali 20 A. 202 and Muzaffar Ali Khan V/s. Parbati 29 A. 640 : A.W.N. (1907) 221 : 4 A.L.J. 501, they have held that even where a Muhammadan widow has lawfully obtained possession in lieu of dower, her right to that possession is purely a personal right and is neither heritable nor transferable and; therefore, the present plaintiffs, even on the facts as alleged by them, are not entitled to retain possession of the 3/8fchs share of Izzat Khan's estate. The correctness of this decision and of the above-mentioned rulings is questioned on appeal. It is conceded by both parties that the dower debt stands in no better position than that of any other unsecured debt of the deceased husband. It is further conceded that if she- lawfully obtains possession of that estate in lieu of her dower debt, the widow is entitled, as against the other heirs of her deceased husband, to hold it until the dower debt has been discharged either from the usufruct or by payment on the part of the heirs. She is, of course, liable to account to the heirs for the profits thereof. This is also clearly laid down by their Lordships of the Privy Council in the case of Musammat Bebee Bechun V/s. Hamid Hussain 14 M.I.A. 377 : 10 B.L.R. 45 : 17 W.R. (P.C.) 113. The solution of the question before us, however, necessitates the ascertaining of the true nature of the widow's possession, when she thus lawfully takes her husband's estate into her hands. Is it a mere personal right to retain possession for her own life-time only subject to payment of the balance of the dower debt at any time before her death or is it a right to possession which continues to her heirs after her death, subject to the conditions as to payment? In the case of Amanat-un-nissa V/s. Bashir-un-nissa 17 A. 77, it was laid down that a Muhammadan widow-is lawfully in such possession where she has obtained it by contract with her husband, by his putting her into possession, or by her being allowed with the consent of the heirs on his death to take possession (in lieu of dower) and thus to obtain a lien for her dower debt. Though I do not perhaps accept this definition as a correct interpretation of the word lawfully as used by their Lordships of the Privy Council in their judgment in the case of Musammat Bebee Bechun V/s. Hamid Hussain 14 M.I.A. 377 : 10 B.L.R. 45 : 17 W.R. (P.C.) 113, (sic) even from this it would seem to follow that the property is in her hands a security for .he debt due to her and in the absence of contract or circumstances pointing to the contrary, she would in law have a right to transfer her debt together with its security, and her heirs would be entitled to inherit both. As to the nature of the widow's possession, it was laid down in Mohammad Asad Ullah Khan V/s. Musammat Ghaseea Beebee 1 Agra 150, that she was temporarily in possession as a security for the payment of her dower claim. That was a case in which the widow had alienated the property itself and it was held that the heirs could sue to avoid the transfer, "it is clear" (runs the judgment) that they" (the heirs) may be entitled to recover possession by payment of the debt, during her life-time or on her death; and that she is wholly incompetent to make a gift of what, although temporarily in ..her possession as a security for the payment of her dower claim, does not belong to her but to them." It must be carefully noted that what the widow had alienated was not her debt with its security but the property itself and that as to the rights of the other heirs it is clearly laid down that they are entitled to recover possession only on payment, during her life-time or on her death.