MT MUNIRAN Vs. MTMUKHTAR BEGAM

JUDGEMENT

(1.) This is a second appeal in which a short point is involved. The suit is a partition suit. The plaintiff, Mt. Mukhtar Begam, is the daughter of Shamsher Khan and his wife, the defendant-appellant, Mt. Muniran. A court-fee of Rs. 15 has been paid in respect of the appeal under Art. 17(vi), Court-fees Act, 1870. The short point I have to determine is whether that is the correct court-fee. The defence to the suit by the defendant-appellant Mt. Muniran, is that her husband, Shamsher, long since died and she, as his widow, has since his death been, and still is, in possession of the property in question in lieu of dower. She says that her dower amounted to Rs. 5000-which is not disputed-and she pleads her present possession as possession in lieu of dower, setting it up in priority to the plaintiff's right of partition.

(2.) There is no question but that, if the widow lawfully and without force or fraud obtained possession of the premises in lieu of dower, her possession will be paramount to the right of partition of the heirs. The substantive question therefore to be determined in the suit was whether the admitted present possession of the widow qualifies as possession in lieu of dower. The Munsif before whom the suit was first heard came to the conclusion, as a fact, first that the defendant was not in possession in lieu of dower, second that a certain nashishtgah in dispute did not form part of the house, and thirdly, that the suit was not under-valued. Thereupon, the defendant appealed and by her memorandum of appeal dated 14th May 1938 no question is raised as to the sufficiency of the court-fee paid upon the original plaint. But this memorandum of appeal was itself valued at Rs. 200 and a court-fee of Rs. 15 only was paid in respect of it. It is the sufficiency of this court- fee with which I have now to deal. The munsarim attached to the Court of the District Judge expressed a considered view that this court-fee was insufficient. The same view found favour with the learned District Judge who rejected the memorandum of appeal on the ground of the insufficiency of the court-fee paid. The view taken by the munsarim and, presumably, by the District Judge is that the appellant is, in effect, seeking in the appeal to establish either a charge on the property in respect of her dower, or in the alternative, a condition-namely, the redemption of her dower debt-precedent to the plaintiff's right to get partition, and it is said that for these reasons the appeal ought to have been valued on the amount, or on the outstanding amount, of the dower debt and an ad valorem court-fee paid accordingly.

(3.) I think that no question of any charge on the property strictly speaking arises. The right of a Mahomedan widow who is in possession of the property of her deceased husband to retain possession until her dower is satisfied does not, I think, constitute in a legal sense a charge on the property. It is rather in the nature of a possessory lien on the property-a mere right in certain circumstances to remain in possession until the dower debt is satisfied out of the rents and profits. Nor do I think that when a Mahomedan widow in the same circumstances says, in defence to the claim of the heirs for possession, that she is entitled to remain in possession as doweress, that amounts to a claim to enforce a charge or condition precedent-at least in any positive sense. All she is saying is that she is in possession and is entitled to remain there until redemption of her dower debt. She is not asking for any decree or order that the plaintiff should pay her dower to her and, indeed, I doubt if she would have any right to do so. Her attitude, as it seems to me, is a purely defensive one-that the plaintiff is not entitled to possession as against her. It is true, no doubt, that, if the plaintiff were to say, that he would pay her the dower due to her, she would probably be only too pleased to accept it and would thereupon relinquish possession. She would probably be bound to. But that is not the same thing as saying that the right she is endeavouring to enforce in her appeal is a right to have her dower debt redeemed by the plaintiff. There are, however, a number of authorities bearing on this question which have been discussed by the munsarim. In Basdeo Ran V/s. Sri Krishn Gir (10) 13 OC 62 the position was that a plaintiff who sought possession of property obtained a decree conditionally upon his paying off a mortgage for Rupees 10,000 secured upon it. He appealed alleging that he was entitled to possession without paying that sum and it was decided that the court-fee on the appeal had to be assessed ad valorem on the sum of Rs. 10,000. Now, what the appellant was seeking to do in that appeal was to discharge himself altogether from a burden of Rs. 10,000, in other words, to put Rs. 10,000 into his own pocket, and I can well understand the principle upon which in that case he was charged with an ad valorem court-fee on Rs. 10,000. As was said by the Assistant Judicial Commissioner in that case: Although it may be said that one object of the appellant is to get possession of certain property, his main object is to avoid payment of a certain sum....