ASIA KHATUN Vs. AMARENDRA NATH BASU

JUDGEMENT

(1.) THIS appeal by the plaintiff arises out of a suit for a declaration that the plaintiff is entitled to retain possession of the lands in suit so long as her claim for dower debt remains unsatisfied. Defendant 1 is the husband of the plaintiff and defendant 2 is the official receiver appointed upon the adjudication of defendant 1 as an insolvent. The case of the plaintiff was that she was married to defendant 1 about 26 years ago; that defendant 1 in consideration of the dower debt executed in her favour a kobala on 22 December, 1930, conveying to her the lands in suit and putting her in possession of the same; that defendant 2 was therefore not entitled to disturb her in her possession. Various defences to the suit were taken on behalf of defendant 2 namely : (1) that the Civil Court had no jurisdiction in the matter in view of Section 4, Provincial Insolvency Act; (2) that the decision by the Insolvency Court in case No. 10 of 1932 operated as a bar to the present suit; (3) that the suit was not maintainable in the absence of notice on the, official receiver under Section 80, Civil P.C., and (4) that the plaintiff had no right to retain possession of the properties, in lieu of the dower debt under the Mahomedan law. Both the Courts below dismissed the suit and the plaintiff thereupon preferred the present appeal.

(2.) IT has been contended before me that the right of the appellant to retain possession of her husband's properties until her dower debt was paid off could not be prejudiced in any way by the husband becoming an insolvent or by the decision of the Insolvency Court regarding ownership claimed by the appellant, on the basis of her kobala and that notice under Section 80, Civil P.C., was not necessary as the appellant's right had not been actually assailed in this instance. IT seems to me that the provisions of the Mahomedan law in respect of a widow's lien upon her husband's property in lieu of dower, debt has been misapprehended by the learned advocate appearing for the appellant. The right to retention of the husband's property arises for the first time on the termination of the marriage either by the death of the husband or by divorce but there is no such right during the continuance of the marriage. Reference may be made in this connexion to the case in Narayana V/s. Biyari ( 22) 9 A.I.R. 1922 Mad. 221, and to the observations of Mr. Mulla in his book, "Principles of Mahomedan Law", Edn. 10, Section 224-C, where the cases in point have been conveniently collected. In this view of the matter it does not seem to me necessary to decide any other question but I do not think I should part with this case without saying : (1) that, in my opinion, the decision in the insolvency case No. 10 of 1932 under Section 53, Provincial Insolvency Act, operates as res judicata in the present suit in view of Section 4, Clause (2) of the, Act - the real question in each of the two proceedings being whether or not the official receiver was entitled to take possession : see the case in Krishna V/s. Official Receiver ( 32) 19 A.I.R. 1932 Cal. 1135 and (2) that the present suit is liable to be dismissed for not giving notice to the official receiver under Section 80, Civil P.C., which appears to be applicable to all forms of action and to all kinds of relief as against a public officer : vide the case in Rura V/s. Official Receiver Amritsar ( 30) 17 A.I.R. 1930 Lah 708. The contention of the appellant having failed this appeal is dismissed with costs.